Title: Section 493.3 - Proposed statement of charges.
493.3 Proposed statement of charges. (a) In an appropriate case, the department may commence an administrative action against an operator or respond to a request for a hearing made by an operator, by delivering a proposed statement of charges, in person or by certified mail, return receipt requested, to the operator.
(b) The proposed statement of charges must contain:
(1) a list of witnesses whom the department intends to present and a statement indicating the substance of their anticipated testimony;
(2) notification that the operator has the opportunity to review all inspection reports and any other documents, such as letters,charts, graphs and photographs upon which the department based its decision, at the appropriate regional office of the department during normal business hours; and
(3) a demand that the operator provide the department with a written response to the charges, either hand-delivered or postmarked within 30 days after the receipt of the proposed statement of charges. The department also must inform the operator that failure to comply with the provisions of section 493.4 of this Part may preclude the possibility of settlement.
(c) In the proposed statement of charges, the department also must provide to the operator a statement which includes the following information for the following kinds of cases:
(1) in an action to assess civil penalties against an operator pursuant to section 486.5(a) of this Title: a general statement of the facts, and a citation to the statutes, rules and regulations upon which the proposed civil penalty is based, and the amount of penalty for which the operator may become liable, as well as the corrective actions which must be taken to correct the violation(s). The statement must advise the operator whether rectification of the identified violations will constitute a complete defense to the assessment of civil penalties;
(2) in an action to assess civil penalties against the operator for operating a facility without a valid operating certificate and to review an order to the operator to close the facility, pursuant to section 486.5(b) of this Title: a general statement of the facts, and a citation to the statutes, rules and regulations upon which the proposed civil penalty is based and the amount of penalty for which the operator may become liable. The statement also must advise the operator that the department may not assess a civil penalty if the operator can demonstrate that the operator 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; and
(3) in an action to modify, revoke, suspend or limit an operating certificate or to challenge the denial of an application for an operating certificate or for renewal of an operating certificate: a general statement of the facts, and a citation to the statutes, rules and regulations upon which the department based its determination.
VOLUME B-1 (Title 18)