Title: Section 486.4 - Enforcement.

Effective Date

01/04/2006

486.4 Enforcement. (a) Enforcement shall mean the action(s) undertaken or initiated by the department to assure that adult care facilities are established and operated in compliance with all applicable provisions of law and regulation.

(b) Enforcement actions undertaken by the department include, but are not limited to:

(1) issuance of notice of intention to initiate enforcement;

(2) conduct of hearings to determine if an operator has failed to comply with applicable law and regulation;

(3) determination, after hearing, that civil penalties should be imposed;

(4) determination, after hearing, to revoke, suspend or limit an operating certificate;

(5) issuance of a commissioner's order, or an order approved by a justice of the Supreme Court, requiring an operator to immediately remedy conditions dangerous to residents;

(6) temporary suspension or limitation of an operating certificate upon finding that resident health and safety are in imminent danger;

(7) request to the Attorney General to seek an injunction against an operator for violations or threatened violations of law or regulation; or

(8) request to the Attorney General to take such action as is necessary to collect civil penalties, seek criminal prosecution, or to bring about compliance with any outstanding hearing determination or order.

(c) The operating certificate of any facility may be revoked, suspended or limited upon a determination by the department, after a hearing in accordance with procedures set forth in Part 493 of this Title, that the operator has failed to comply with the requirements of State or local laws or regulations applicable to the operation of such facility.

(d) An operating certificate may be temporarily suspended or limited without a hearing for a period not in excess of 60 days upon written notice to the facility that the department has found that the public health, or an individual's health, safety or welfare is in imminent danger. If the department schedules an expedited hearing to begin during the suspension period, in a proceeding to suspend, revoke or limit the operating certificate, as set forth in section 493.8 of this Title, the temporary suspension will remain in effect until the hearing decision is issued.

(e) 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:

(1) 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;

(2) a limitation on the number of persons for which such facility is authorized to provide care;

(3) a prohibition against the admission of new residents after a specified date; or

(4) a limitation on the type(s) of service to be provided.

(f) Violations or threatened violations of law or the regulations of the department, by any facility subject to the inspection and supervision of the department, may be enjoined by the Supreme Court. The Attorney General may seek such an injunction, 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 temporary restraining order 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 issue a preliminary injunction or a permanent injunction enjoining a facility from admitting new residents, or directing the department and such facility to arrange for the transfer of residents to other facilities, or any other injunctive relief the court may deem necessary.

(g) Whenever the commission, after investigation, finds that any person, agency or facility subject to this regulation 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 30 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 30 days. The commissioner shall, within 30 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.

(h) Any official, operator or his agent, designee or employee of a facility who intentionally refuses to admit any officer or inspector of the department, or intentionally refuses or fails to furnish the information required by the department or any officer or inspector, shall be guilty of a misdemeanor.

Volume

VOLUME B-1 (Title 18)

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