Title: Section 493.10 - Conduct of hearing.
493.10 Conduct of hearing. (a) At the time and place set forth in the notice of hearing, the parties will advise the hearing officer which portions of the statement of charges remain in dispute.
(b) The hearing officer has the power to administer oaths, issue subpoenas, require the attendance of witnesses and the production of records, rule upon requests for adjournments, make evidentiary rulings, and otherwise preside over the hearing. The hearing officer must make an opening statement describing the proceedings, the issues to be decided and the manner in which the hearing will be conducted.
(c) The hearing officer must introduce into the record the statement of charges and its appendices; post office receipts verifying the receipt of all mailed documents, where applicable; and the answer, together with all appendices and accompanying documents.
(d) The department will be precluded from making any argument and asserting any charges not set forth in the statement of charges that has been sent to the operator with the notice of hearing. The operator will be precluded from raising issues and submitting any evidence not set forth in the answer. Each party may move for orders to preclude the other party from asserting arguments or charges, raising issues or submitting evidence as described within this division. However, the hearing officer may, in his or her discretion, permit either party to prove any matter not set forth in the statement of charges or in the answer. In exercising his or her discretion, the hearing officer will consider prejudice to either party, and whether the party attempting to prove the matter not set forth in the statement of charges or in the answer has demonstrated a good faith attempt to ascertain the matter beforehand, and whether such party informed the other party of the new matter as soon as it was aware of it. If the hearing officer allows a party to call a witness without prior notice to the other party, such other party will be permitted a reasonable time to prepare for cross-examination of that witness.
(e) The hearing officer may direct that the hearing continue or may designate future hearing dates and adjourn the hearing until such time. The hearing officer also may direct that the parties engage in further discussions, exchanges or negotiations to attempt to resolve outstanding issues.
(f) The parties to a hearing have the burden of establishing, by a preponderance of the evidence, the following:
(1) in an action to assess civil penalties against an operator, the department must establish that the violations upon which the civil penalties are based occurred and that the operator received written notice of the violations. Violations which are proven to have occurred are presumed to continue. If the operator raises an affirmative defense that the violations have been rectified, the operator must establish that the violations were rectified, as defined in section 486.5(a) of this Title, within 30 days of receiving the written notice of the violations. The operator may also raise, as an affirmative defense, that the operator had submitted to the department within 30 days of receiving such notice, an acceptable plan for rectification and monitoring and was rectifying the violations in accordance with the necessary corrective actions and within the periods of time as accepted by the department in such plan.
(2) in an action to assess civil penalties pursuant to section 486.5(b) of this Title for operating a facility without a valid operating certificate and to review an order to the operator to close the facility, the department must establish that the operator is providing or arranging for the provision of personal care or supervision to one or more unrelated, dependent adults or has held himself or herself out as providing such services and is providing at least room and board to one or more unrelated, dependent adults. In order to rebut the charge that the operator does not possess a valid operating certificate, the operator must establish that he or she possessed an operating certificate issued pursuant to article seven of the Social Services Law, article 28 of the Public Health Law, or article 16, 23 or 31 of the Mental Hygiene Law, within 30 days of being provided by the department with a written summary of the inspection by which the department determined that the operator is operating an uncertified facility, or that the operator transferred all unrelated dependent adults to appropriate facilities within 30 days of receiving such written summary.
(3) In an action to challenge the denial of an application for an operating certificate, the operator must establish that the operator meets all the statutory and regulatory requirements for obtaining the certificate, including that he or she has the requisite character and competence to obtain an operating certificate and that it was an abuse of discretion for the commissioner or the commissioner's designee not to grant the operating certificate.
(4) In an action to challenge the denial of an application to renew an operating certificate, the operator must establish that the operator meets all the statutory and regulatory requirements for obtaining renewal of the certificate including that he or she has the requisite character and competence to obtain a renewal of the operating certificate and that it was an abuse of discretion for the commissioner or the commissioner's designee not to renew the operating certificate.
(5) In an action to revoke, suspend or limit an operating certificate, the department must establish that the operator has failed to comply with the requirements of State or local laws or regulations applicable to the operation of the facility.
(6) In an action to challenge an order of the commissioner issued pursuant to section 460-d(8) of the Social Services Law, the operator must establish that the condition or activity which is the subject of the order does not constitute a danger to the physical or mental health of the residents.
(7) In an action to modify an operating certificate, the department must establish that the action would be in the public interest in order to conserve resources by restricting the number of beds, level of services or both to those which are actually needed.
(g) Evidence is admissible unless it is irrelevant, immaterial or unduly repetitious, or subject to exclusion as set forth in this section. Evidence may include but is not limited to: reports of inspection prepared by inspectors of the department or other governmental agencies; audiotaped or videotaped interviews with facility residents; photographs, charts and reports prepared by physicians of facility residents; and letters between the parties. Photocopies may be admitted into evidence in lieu of originals; however, originals of such documents must be made available for inspection at the direction of the hearing officer. The hearing officer must observe the rules of privilege recognized in law.
(h) All testimony must be affirmed or given under oath.
(i) The parties are entitled to be represented by an attorney or other representative of their choice with a written authorization, present witnesses, give any relevant and material evidence that is not unduly repetitious or excluded under this section, cross-examine witnesses, and examine any document or item offered into evidence.
(j) The hearing will be recorded verbatim, either electronically or stenographically.
(k) The hearing officer may adjourn the hearing on his or her own motion, upon consent of the parties or upon the motion of one party for good cause. Adjournments will not be routinely given, since hearing dates are considered to be dates certain. A party requesting an adjournment based upon the need of a party or its attorney to be in court must submit an affidavit of actual engagement setting forth the circumstances of such need to the hearing officer. A party requesting an adjournment based upon illness must submit medical documentation of such illness to the hearing officer. The request for the adjournment must specify the number of days needed.
VOLUME B-1 (Title 18)