§ 460-d. Enforcement powers. 1. The commissioner or any person
designated by the commissioner may undertake an investigation of the
affairs and management of any facility subject to the inspection and
supervision provision of this article, or of any person, corporation,
society, association or organization which 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. Persons empowered by the
commissioner to conduct any such investigation are hereby 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 department 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.

3. The attorney general and every district attorney shall upon request
of the department furnish such legal assistance, counsel or advice as
the department may require in the discharge of its duties.

4. (a) The operating certificate of any facility may be revoked,
suspended or limited upon a determination by the department that the
facility has failed to comply with the requirements of state or local
laws or regulations applicable to the operation of such facility.

(b) No operating certificate shall be revoked, suspended or limited
without a hearing held in accordance with procedures established by
department regulations, which procedures shall require that notice of
the time and place of the hearing, and notice of the charges, shall be
served in person or by certified mail addressed to the facility at least
thirty days prior to the date of the hearing. A written answer to the
charges may be filed with the department not less than ten business days
prior to the date of the hearing. An operating certificate may,
nevertheless, be suspended or limited without a hearing for a period not
in excess of sixty days, upon written notice to the facility following a
finding by the department that the public health, or an individual's
health, safety or welfare, are in imminent danger.

(c) Any order or determination to suspend any operating certificate
will specify the conditions of the suspension. These conditions may
include but need not be limited to the following:

(i) if required for the protection of the health, safety or welfare of
the residents, the immediate transfer of some or all residents to other
appropriate facilities or to the custody of their legal guardians, if
any;

(ii) the appointment of a temporary operator to operate the facility
during the term of the suspension;

(iii) the immediate transfer of all records concerning the operation
of the facility, including resident records, facility business records
and any other records related to the operation of the facility to the
department immediately. The department shall control the records for the
term of the suspension;

(iv) the operator or operators of the facility shall be barred from
access to the facility during the term of the suspension; or

(v) the requirement that the operator, if replaced by a temporary
operator, provide the temporary operator with any funds received by the
operator for the operation of the facility.

(d) 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; or

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

(e) Any order or determination of revocation, suspension or limitation
of the operating certificate shall be subject to judicial review in
accordance with article seventy-eight of the civil practice law and
rules.

5. In addition to or as an alternative to any power which the
department may exercise under this article, the supreme court may grant
equitable relief against violations or threatened violations of this
article or of the regulations of the department by any facility subject
to the inspection and supervision of the department. The attorney
general may seek such equitable relief, in the name of the people, upon
the request of the department. 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 order for equitable relief may issue, 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 department's inspection
and supervision. The court, after a hearing, may make an order granting
such equitable relief as it may deem necessary, including, but not
limited to a preliminary injunction or a permanent injunction, enjoining
a facility from admitting new residents, directing the department and
such facility to arrange for the transfer of residents to other
facilities, appointment of a temporary or permanent receiver for the
protection of the public health or the health, safety and welfare of any
individual in such facility, or directing a facility operator to
transfer all records concerning the operation of the facility, including
resident records, facility business records and any other records
related to the operation of the facility to the department immediately.
The people shall not be required to post security or bond.

6. Orders prohibiting placing-out or boarding-out of children or
orders of removal of any child may be issued and enforced in accordance
with section three hundred eighty-five of this chapter.

7. (a) The department shall adopt regulations establishing civil
penalties of up to one thousand dollars per day to be assessed against
all adult care facilities except facilities operated by a social
services district for violations of (i) regulations of the department
pertaining to the care of residents in such facilities, (ii) paragraph
(a) of subdivision three of section four hundred sixty-one-a of this
chapter, or (iii) an order issued pursuant to subdivision eight of this
section. The regulations shall specify the violations subject to penalty
and the amount of the penalty to be assessed in connection with each
such violation and shall specify that only civil penalties of up to one
thousand dollars per day per violation shall be assessed pursuant to
this paragraph against an adult care facility found responsible for an
act of retaliation or reprisal against any resident, employee, or other
person for having filed a complaint with or having provided information
to any long term care patient ombudsman functioning in accordance with
section five hundred forty-four or five hundred forty-five of the
executive law.

(b) (1) In addition to any other civil or criminal penalty provided by
law, the department shall have the power to assess civil penalties in
accordance with its regulations adopted pursuant to paragraph (a) of
this subdivision, after a hearing conducted in accordance with the
procedures established by regulations of the department. Such procedures
shall require that notice of the time and place of the hearing, together
with a statement of charges of violations, shall be served in person or
by certified mail addressed to the facility at least thirty days prior
to the date of the hearing. The statement of charges of violations shall
set forth the existence of the violations, the amount of penalty for
which it may become liable and the steps which must be taken to rectify
the violation and, where applicable, a statement that the department
contends that a penalty may be imposed under this paragraph regardless
of rectification. An answer to the charges of violations, in writing,
shall be filed with the department, not less than ten days prior to the
date of hearing. The answer shall notify the department of the
facility's position with respect to each of the charges and shall
include all matters which if not disclosed in the answer would be likely
to take the department by surprise. The commissioner, or a member of his
staff who is designated and authorized by him to hold such hearing, may
in his discretion allow the facility to prove any matter not included in
the answer. Where the facility satisfactorily demonstrates that it
either had rectified the violations within thirty days of receiving
written notification of the results of the inspection pursuant to
section four hundred sixty-one-a of this chapter, or had submitted
within thirty days an acceptable plan for rectification and was
rectifying the violations in accordance with the steps and within the
additional periods of time as accepted by the department in such plan,
no penalty shall be imposed, except as provided in subparagraph two of
this paragraph.

(2) Rectification shall not preclude the assessment of a penalty if
the department establishes at a hearing that a particular violation,
although corrected, endangered or resulted in harm to any resident as
the result of:

(i) the total or substantial failure of the facility's fire detection
or prevention systems, or emergency evacuation procedures prescribed by
department safety standard regulations;

(ii) the retention of any resident who has been evaluated by the
resident's physician as being medically or mentally unsuited for care in
the facility or as requiring placement in a hospital or residential
health care facility and for whom the operator is not making persistent
efforts to secure appropriate placement;

(iii) the failure in systemic practices and procedures;

(iv) the failure of the operator to take actions as required by
department regulations in the event of a resident's illness or accident;

(v) the failure of the operator to provide at all times supervision of
residents by numbers of staff at least equivalent to the night staffing
requirement set forth in department regulations; or

(vi) unreasonable threats of retaliation or taking reprisals,
including but not limited to unreasonable threats of eviction or
hospitalization against any resident, employee or other person who makes
a complaint concerning the operation of an adult care facility,
participates in the investigation of a complaint or is the subject of an
action identified in a complaint.

The department shall specify in its regulations those regulations to
which this subparagraph two shall apply.

(3) In assessing penalties pursuant to this paragraph, the department
shall consider promptness of rectification, delay occasioned by the
department, and the specific circumstances of the violations as
mitigating factors.

(c) Upon the request of the department, the attorney general may
commence an action in any court of competent jurisdiction against any
facility subject to the provisions of this section, and against any
person or corporation operating such facility, for the recovery of any
penalty assessed by the department in accordance with the provisions of
this subdivision.

(d) Any such penalty assessed by the department may be released or
compromised by the department before the matter has been referred to the
attorney general, and where such 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 and discontinued
by the attorney general with the consent of the department.

8. Whenever the commissioner, after investigation, finds that any
person, agency or facility subject to this article 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 department, and that it therefore
appears to be prejudicial to the interests of such residents to delay
action for thirty days until an opportunity for a hearing can be
provided in accordance with the provisions of this section, the
commissioner 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 thirty days. The commissioner
shall within thirty 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.

9. (a) The department shall have authority to impose a civil penalty
not exceeding one thousand dollars per day against, and to issue an
order requiring the closing of, after notice and opportunity to be
heard, any facility which does not possess a valid operating certificate
issued by the department and is an adult care facility subject to the
provisions of this article and the regulations of the department. A
hearing shall be conducted in accordance with procedures established by
department regulations which procedures shall require that notice of the
determination that the facility is an adult care facility and the
reasons for such determination and notice of the time and place of the
hearing be served in person on the operator, owner or prime lessor, if
any, or by certified mail, return receipt requested, addressed to such
person and received at least twenty days prior to the date of the
hearing. If such operator, owner or prime lessor, if any, is not known
to the department, then service may be made by posting a copy thereof in
a conspicuous place within the facility or by sending a copy thereof by
certified mail, return receipt requested, addressed to the facility. A
written answer to the notice of violation may be filed with the
department not less than five days prior to the date of the hearing.
Demonstration by the facility that it possessed an operating certificate
issued pursuant to this article, article twenty-eight of the public
health law or article sixteen, twenty-three, thirty-one or thirty-two of
the mental hygiene law at the time the hearing was commenced shall
constitute a complete defense to any charges made pursuant to this
subdivision.

(b) The penalty authorized by this section shall begin to run thirty
days after the department provides the operator, in writing, with a
summary of the inspection of the facility by which the department
determined that he or she is operating an uncertified adult care
facility. The submission of an application by the operator for an
operating certificate for the facility shall not act as a bar to the
imposition of a penalty against the operator.

(c) (i) For the purposes of assessing the applicability of this
article and the regulations of the department, the department shall be
authorized to inspect any facility which reasonably appears to the
department to be subject to the provisions of this article and to assess
the needs of the residents of such facility pursuant to the provisions
of section four hundred sixty-c of this title.

(ii) At the time that a representative of the department appears at
the facility for purposes of conducting such inspection, the
representative shall inform the operator, administrator or other person
in charge that the inspection will be conducted unless such person
objects to the inspection and that if such person does object the
department, pursuant to the provisions of subparagraph (iii) of this
paragraph, shall be authorized to request the attorney general to apply
to the court for an order granting the department access to the
facility.

(iii) If the department is not permitted access to such facility by
the operator, administrator or other person in charge thereof, the
attorney general, upon the request of the department, shall be
authorized to apply, without notice to the operator, administrator or
chairman of the board of directors of a not-for-profit facility, to the
supreme court in the county in which the facility is located for an
order granting the department access to such facility. The court may
grant such an order if it determines, based on evidence presented by the
attorney general, that there is reasonable cause to believe that such
facility is an adult care facility which does not possess a valid
operating certificate issued by the department.

(d) Upon the request of the department, the attorney general may
commence an action in any court of competent jurisdiction against any
facility subject to the provisions of this subdivision, and against any
person or corporation operating such facility, for the recovery of any
penalty assessed by the department in accordance with the provisions of
this subdivision.

(e) Any penalty assessed by the department pursuant to this
subdivision may be released or compromised by the department before the
matter has been referred to the attorney general and where such 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 and discontinued by the attorney general with the consent of
the department.

10. By March first, nineteen hundred ninety-five and annually
thereafter, the department shall submit a report to the governor and the
legislature on the regulation of adult homes and residences for adults.
Such report shall include both a narrative and statistical summary
detailing the results of inspections and enforcement actions of adult
homes and residences for adults. The report shall also include results
of audits of financial conditions and practices of a selected sample of
adult homes and residences of adults and recommendations for legislative
action relating to the need for changes in statute.

11. On or before issuance by the department to an adult care facility
operator of official written notice of: the proposed revocation,
suspension or denial of the operator's operating certificate; the
limitation of the operating certificate with respect to new admissions;
the issuance of a department order or commissioner's order; the seeking
of equitable relief pursuant to this section; the proposed assessment of
civil penalties for violations of the provisions of subparagraph two of
paragraph (b) of subdivision seven of this section or placement on the
"do not refer list" pursuant to subdivision fifteen of this section,
written notice also shall be given to the appropriate office of the
department of mental hygiene, department of corrections and community
supervision and local social services districts, and provided further
that the department of health shall notify hospitals in the locality in
which such facility is located that such notice has been issued. Upon
resolution of such enforcement action the department shall notify the
appropriate office of the department of mental hygiene, department of
corrections and community supervision, local social services districts
and hospitals.

12. Social services districts and other local government entities
established pursuant to this chapter shall be prohibited from making
referrals for admissions to adult care facilities that have received
official written notice regarding: the proposed revocation, suspension
or denial of the operator's operating certificate; the limitation of the
operating certificate with respect to new admissions; the issuance of
department order or commissioner's orders; the seeking of equitable
relief pursuant to this section; the proposed assessment of civil
penalties for violations of the provisions of subparagraph two of
paragraph (b) of subdivision seven of this section; or the facility's
placement on the "do not refer list" pursuant to subdivision fifteen of
this section.

* 13. The department shall notify the department of health of any
enforcement action pursuant to this section taken against an operator of
an adult home or enriched housing program which has been licensed by the
department of health as a limited home care services agency pursuant to
section thirty-six hundred five of the public health law.

* NB Expires June 30, 2025

* 14. If the department receives notice from the department of health
that an action has been taken against an operator of a limited home care
services agency, pursuant to section thirty-six hundred five-a of the
public health law, the department shall review the delivery of services
provided by the certified operator of an adult home or enriched housing
program to determine whether such operator is meeting all applicable
regulations and standards.

* NB Expires June 30, 2025

15. The department of health shall maintain, on its website, a list of
all adult homes, enriched housing programs, residences for adults and
assisted living programs that have received written notice of:
enforcement action based on a violation of an applicable law or
regulation that creates an endangerment of resident health or safety
pursuant to subparagraph two of paragraph (b) of subdivision seven of
this section or a pending enforcement action against a facility's
operating certificate or a determination that the facility is required
to be certified as an adult home, enriched housing program or residence
for adults. Provided however, if a facility contends, in writing, that
the violation resulting in the facility being included on the "do not
refer list" has been corrected, the department shall, within thirty
days, reinspect the facility, and if the department determines that the
violation has been corrected, the facility shall be immediately removed
from the list. This list shall be known as the "do not refer" list and
shall be promptly updated to reflect any of the above violations and the
reopening of admissions in any adult care facility in which the
enforcement action for which they were added to the list has been
resolved.

16. Any operator or controlling person of an adult care facility, as
defined in clause two of subparagraph (x) of paragraph (a) of
subdivision four of section four hundred sixty-one-e of this article
shall be prohibited from applying to the department of health or to any
other agency of this state for an operating certificate or approval to
operate an alternate type of facility during the period in which such
certificate has been revoked, suspended or limited.

17. The department of health shall direct the temporary operator to,
and the temporary operator shall, provide written notification to
residents of all adult homes, enriched housing programs, residences for
adults and assisted living programs where a temporary operator has been
appointed pursuant to subdivision four of this section.