Part 343 - HEARING PROCEDURE: RESIDENTIAL CARE PROGRAMS FOR CHILDREN

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Statutory Authority: 
Social Services Law, Sections 20, 34, 460, 461-b

Section 343.1 - Definitions.

Section 343.1 Definitions. (a) Commissioner means the commissioner of the State Department of Social Services.

(b) Department means the State Department of Social Services.

(c) Hearing means the administrative review procedure by which the department determines to take administrative action regarding a residential care program for children pursuant to section 460-d(4), 460-d(5), 460-d(6) or 460-d(8) of the Social Services Law or the administrative procedure by which a determination under section 343.2(b) of this Part is reviewed.

(d) Expedited hearing means the administrative review procedure by which a person, agency or facility is afforded an opportunity to be heard after the department finds, pursuant to section 460-d(8) of the Social Services Law, that the person, agency or facility 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 residential care program for children subject to the inspection and supervision of the department and issues an order to discontinue such dangerous condition or activity or take certain action immediately or within a specified period of less than 3O days.

(e) Facility means an establishment providing residential care and services to children which is subject to the inspection and supervision provisions of article 7 of the Social Services Law.

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Section 343.2 - General.

343.2 General. (a) No operating certificate will be revoked, suspended, modified or limited without a hearing held in accordance with the procedures established in this Part, except that an operating certificate may, nevertheless, be temporarily suspended or limited without a hearing for a period not in excess of 30 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.

(b) Upon the denial of an application for an initial operating certificate, or an application for renewal of an operating certificate, the applicant shall have the right to a hearing to review the denial.

(c) The department shall extend the duration of an operating certificate for a temporary period as may be appropriate when the period of validity of an operating certificate terminates during the course of a hearing to revoke, suspend or limit an operating certificate and until the hearing decision is issued. If a hearing is requested to review the denial of an application to renew an operating certificate, the department shall extend the duration of the operating certificate until either the hearing decision is issued, the hearing request is withdrawn or the appellant defaults the hearing.

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Section 343.3 - Notice of hearing.

343.3 Notice of hearing. (a) A notice of hearing for those actions described in section 343.2(a) of this Part shall be served in person or by certified mail addressed to the operator of the facility, at least 30 days prior to the date of the hearing.

(b) A notice of hearing for those actions described in section 343.2(b) of this Part must be served in person or by certified mail addressed to the appellant at least 30 days prior to the date of the hearing.

(c) For a hearing held to revoke, suspend, modify or limit an operating certificate, the notice must specify the time and place of the hearing, the proposed action and the charges which are the basis for the proposed action. The charges must specify the statutes, rules and regulations, or other applicable requirements of law with which the facility failed to comply and must include a brief statement of the facts pertaining to such noncompliance.

(d) For a hearing held to review the denial of an original operating certificate, or the denial of an application to renew an operating certificate, the notice shall specify the time and place of the hearing and the charges which are the basis for the denial. The charges shall specify the statutes, rules and regulations, or other applicable requirements of law upon which the denial was based and shall include a brief statement of the facts pertaining to the denial.

(e) The notice of hearing must also inform the operator of the facility, or the applicant for an initial operating certificate:

(1) of its opportunity to present evidence and argument on issues of fact or law at the hearing;

(2) of its right to be represented by an attorney-at-law or other representative of its choice;

(3) of the method by which adjournments may be requested for good cause; and

(4) that its operating certificate will be extended during the course of a hearing and pending the hearing decision.

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Section 343.4 - Answer.

343.4 Answer. The operator of a facility or the applicant for an operating certificate may file an answer to the allegations contained in a notice of hearing. The answer must be in writing and must be filed with the department not less than five business days prior to the date of hearing.

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Section 343.5 - Expedited hearings, procedure.

343.5 Expedited hearings, procedure. (a) Whenever the commissioner, or his or her designee, after investigation, finds that any person, agency or facility which operates a residential care program for children is causing, engaging in or maintaining a condition or activity which constitutes a danger to the physical or mental health of the residents such residential care program, 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, the commissioner or his or her designee must 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.

(b) The operator of a facility may file an answer to the allegations contained in a notice of hearing. The answer shall be in writing and shall be filed with the department within 10 days after the notice is mailed to the facility.

(c) Either upon receipt of the answer, or upon the expiration of the 10-day period provided for in subdivision (b) of this section, the department shall schedule a hearing to be held in accordance with the procedure in this Part, except that the hearing shall scheduled within 30 days of the issuance of the order as provided for in subdivision (a) of this section.

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Section 343.6 - Joinder.

343.6 Joinder. (a) The department shall have the power to combine into a single proceeding the assessment of civil penalties and the suspension, revocation or limitation of an operating certificate, upon proper notice in accord with the provisions of this Part.

(b) The department shall have the right to join in one proceeding all those respondents if there is asserted against them jointly, severally or in the alternative any violation arising out of the same transaction or occurrence, and if there is any question of law or fact common to all respondents which will arise in the proceeding.

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Section 343.7 - Pleadings, depositions and discovery.

343.7 Pleadings, depositions and discovery. (a) The pleadings in an enforcement action shall consist of the notice of hearing and answer.

(b) Neither formal discovery procedures nor formal procedures for bills of particulars shall apply. However, upon application of a facility, a more definite and detailed statement shall be furnished whenever the hearing officer finds that the statement of charges does not adequately apprise the facility of such charges. Any statement furnished shall be deemed, in all respects, to be part of the original notice of hearing. The hearing officer may grant additional time to respond to the notice of hearing when a motion for a more definite and detailed statement has been granted.

(c) Disclosure of evidence by deposition of a party to the hearing or the officer, director, member, agent or employee of a party, prior to the hearing shall not be permitted, except where the hearing officer determines that special circumstances, as set forth in section 3101(a)(3) of the New York Civil Practice Law and Rules, require the taking of testimony by deposition.

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Section 343.8 - Hearing officer.

343.8 Hearing officer. (a) The hearing must be conducted by a hearing officer who is an attorney employed by the department for that purpose, and has not been involved in any way with the action in question. The hearing officer has all the powers conferred by law and regulations of the department to administer oaths, issue subpoenas, require the attendance of witnesses and the production of records, rule upon requests for adjournment, rule upon objections to the introduction of evidence and to otherwise regulate the hearing, preserve requirements of due process and effectuate the purpose and provisions of applicable law.

(b) A party to a hearing may make a request to a hearing officer that the hearing officer remove himself or herself from presiding at the hearing.

(1) The grounds for removing a hearing officer are that such hearing officer has:

(i) previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer; or

(ii) any interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or

(iii) displayed bias or partiality to any party to the hearing.

(2) The hearing officer may independently determine to remove himself or herself from presiding at a hearing on the grounds set forth in paragraph (1) of this subdivision.

(3) The request for removal made by a party must:

(i) be made in good faith; and

(ii) be made at the hearing in writing or orally record; and

(iii) describe in detail the grounds for requesting that the hearing officer be removed.

(4) Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove himself or herself from the hearing.

(5) If the hearing officer determines not to remove himself or herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue but the request for removal will automatically be reviewed by the general counsel or the general counsel's designee.

(6) The determination of the hearing officer not to remove himself or herself will be reviewed by the general counsel or the general counsel's designee. Such review will include review of written documents submitted by the parties and the transcript of the hearing.

(7) The general counsel or the general counsel's designee must issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing.

(8) The written determination of the general counsel or the general counsel's designee will be made part of the record.

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Section 343.9 - Who may be present at hearing; authorization of representative.

343.9 Who may be present at hearing; authorization of representative.

(a) The respondent operator of a facility, its representative or representatives, counsel or other representatives of the department, witnesses of both parties and any person who may be called by the hearing officer may be present at the hearing, together with such other persons as may be admitted by the hearing officer in his or her discretion. Upon his or her own motion, or upon the motion of either party, the hearing officer may exclude potential witnesses and those who have given prior testimony from the hearing during the testimony of other witnesses.

(b) An individual, other than an attorney, representing a facility shall have an appropriate written authorization signed by the proprietor of the facility or by an officer, member or director of an operator of a facility when the operator is not a natural person.

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Section 343.10 - Conduct of hearing-rights of parties.

343.10 Conduct of hearing-rights of parties. (a) The hearing officer shall preside and shall make all procedural rulings. He shall make an opening statement describing the nature of the proceedings, the issues and the manner in which the hearing will be conducted.

(b) The rules of evidence as applied in a court of law shall not apply, except that privileges recognized by law will be given effect. The hearing officer may exclude testimony or other evidence which is irrelevant or unduly repetitious.

(c) All testimony shall be given under oath or affirmation.

(d) The facility shall be entitled to be represented by an attorneyat-law or other representative of its choice, to have witnesses give testimony and to otherwise present relevant and material evidence in its behalf, to cross-examine witnesses and to examine any document or item offered into evidence.

(e) The hearing shall be recorded verbatim. On request made upon the department by any party to a hearing, within a reasonable time after hearing, the department shall prepare the record together with any transcript of proceedings and shall furnish a copy of the record and transcript or any part thereof to any party as requested. The department is authorized to charge not more than its cost for the preparation and/or the rate specified in contract between the department and a contractor if the transcript is prepared by a private contractor.

(f) The hearing may be adjourned only for good cause by the hearing officer on his own motion or at the request of either party.

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Section 343.11 - The record.

343.11 The record. (a) The record shall include:

(1) all notices, pleadings and intermediate rulings;

(2) the transcript or recording of the hearing;

(3) exhibits received into evidence;

(4) matters officially noticed;

(5) questions and offers of proof, objections thereto and rulings thereon;

(6) proposed findings and exceptions, if any;

(7) any report rendered by the hearing officer; and

(8) any request for disqualification of a hearing officer.

(b) After the hearing has been concluded, the hearing officer shall submit a report containing findings of fact and conclusions of law and a recommended decision. Findings of fact shall be based exclusively on the record of the hearing.

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Section 343.12 - Examination of the record after hearing.

343.12 Examination of the record after hearing. Upon reasonable notice to the department, the record of the hearing may be examined by any party to the hearing at the department's offices during regular business hours.

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Section 343.13 - Decision after hearing.

343.13 Decision after hearing. (a) The hearing decision shall be made and issued by the commissioner or by a member of his or her staff designated by him or her to consider and make such decisions and shall be based exclusively on the record of the hearing. The decision shall be in writing and shall describe the issues, recite the relevant facts, the pertinent provisions of law and department regulations, make appropriate findings, determine the issues, state reasons for the determination and, when appropriate, direct specific action.

(b) A copy of such decision shall be mailed to the operator of the facility and to its attorney or other designated hearing representative.

(c) In the event the decision is adverse to the operator of the facility, the copy of decision shall be sent together with a notice of the right to judicial review in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

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