4.

1. (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.
2. (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.

3. (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:

   1. (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;
   2. (ii) the appointment of a temporary operator to operate the facility during the term of the suspension;
   3. (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;
   4. (iv) the operator or operators of the facility shall be barred from access to the facility during the term of the suspension; or
   5. (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.

4. (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:

   1. (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;
   2. (ii) a limitation on the number of persons for which such facility is authorized to provide care; or
   3. (iii) a prohibition against the admission of new residents after a specified date.
5. (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.

7.

1. (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.

2. (b)

   1. (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. (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:
   3. (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;
   4. (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;
   5. (iii) the failure in systemic practices and procedures;
   6. (iv) the failure of the operator to take actions as required by department regulations in the event of a resident's illness or accident;
   7. (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
   8. (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.
   9. (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.
3. (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.
4. (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.

9.

1. (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.
2. (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.

3. (c)

   1. (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.
   2. (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.
   3. (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.
4. (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.
5. (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.