New York Laws
Article 31 - Regulation and Quality Control of Services for the Mentally Disabled
31.20 - Temporary Operator.

(a) For the purposes of this section:
(1) "Established operator" shall mean the operator of a mental health
program that has been established and issued an operating certificate
pursuant to this article.
(2) "Extraordinary financial assistance" shall mean state funds
provided to, or requested by, a program for the express purpose of
preventing the closure of the program that the commissioner finds
provides essential and necessary services within the community.
(3) "Mental health program" shall mean a provider of services for
persons with serious mental illness, as such terms are defined in
section 1.03 of this chapter, which is licensed or operated by the
office.
(4) "Office" shall mean the office of mental health.
(5) "Serious financial instability" shall include but not be limited
to defaulting or violating material covenants of bond issues, missed
mortgage payments, a pattern of untimely payment of debts, failure to
pay its employees or vendors, insufficient funds to meet the general
operating expenses of the program, failure to maintain required debt
service coverage ratios and/or, as applicable, factors that have
triggered a written event of default notice to the office by the
dormitory authority of the state of New York.
(6) "Temporary operator" shall mean any operator of a mental health
program that has been established and issued an operating certificate
pursuant to this article or which is directly operated by the office of
mental health, that:
a. agrees to operate a mental health program on a temporary basis in
the best interests of its patients served by the program; and
b. has a history of compliance with applicable laws, rules, and
regulations and a record of providing care of good quality, as
determined by the commissioner; and
c. prior to appointment as temporary operator, develops a plan
determined to be satisfactory by the commissioner to address the
program's deficiencies.
(b) (1) In the event that: (i) the established operator is seeking
extraordinary financial assistance; (ii) office collected data
demonstrates that the established operator is experiencing serious
financial instability issues; (iii) office collected data demonstrates
that the established operator's board of directors or administration is
unable or unwilling to ensure the proper operation of the program; or
(iv) office collected data indicates there are conditions that seriously
endanger or jeopardize continued access to necessary mental health
services within the community, the commissioner shall notify the
established operator of his or her intention to appoint a temporary
operator to assume sole responsibility for the program's treatment
operations for a limited period of time. The appointment of a temporary
operator shall be effectuated pursuant to this section, and shall be in
addition to any other remedies provided by law.
(2) The established operator may at any time request the commissioner
to appoint a temporary operator. Upon receiving such a request, the
commissioner may, if he or she determines that such an action is
necessary, enter into an agreement with the established operator for the
appointment of a temporary operator to restore or maintain the provision
of quality care to the patients until the established operator can
resume operations within the designated time period; the patients may be
transferred to other mental health programs operated or licensed by the
office; or the operations of the mental health program should be
completely discontinued.
(c) (1) A temporary operator appointed pursuant to this section shall
use his or her best efforts to implement the plan deemed satisfactory by
the commissioner to correct or eliminate any deficiencies in the mental
health program and to promote the quality and accessibility of mental
health services in the community served by the mental health program.
(2) If the identified deficiencies cannot be addressed in the time
period designated in the plan, the patients shall be transferred to
other appropriate mental health programs licensed or operated by the
office.
(3) During the term of appointment, the temporary operator shall have
the authority to direct the staff of the established operator as
necessary to appropriately treat and/or transfer the patients. The
temporary operator shall, during this period, operate the mental health
program in such a manner as to promote safety and the quality and
accessibility of mental health services in the community served by the
established operator until either the established operator can resume
program operations or until the patients are appropriately transferred
to other programs licensed or operated by the office.
(4) The established operator shall grant access to the temporary
operator to the established operator's accounts and records in order to
address any deficiencies related to a mental health program experiencing
serious financial instability or an established operator requesting
financial assistance in accordance with this section. The temporary
operator shall approve any financial decision related to a program's day
to day operations or program's ability to provide mental health
services.
(5) The temporary operator shall not be required to file any bond. No
security interest in any real or personal property comprising the
established operator or contained within the established operator or in
any fixture of the mental health program, shall be impaired or
diminished in priority by the temporary operator. Neither the temporary
operator nor the office shall engage in any activity that constitutes a
confiscation of property.
(d) The temporary operator shall be entitled to a reasonable fee, as
determined by the commissioner and subject to the approval of the
director of the division of the budget, and necessary expenses incurred
while serving as a temporary operator. The temporary operator shall be
liable only in its capacity as temporary operator of the mental health
program for injury to person and property by reason of its operation of
such program; no liability shall incur in the temporary operator's
personal capacity, except for gross negligence and intentional acts.
(e) (1) The initial term of the appointment of the temporary operator
shall not exceed ninety days. After ninety days, if the commissioner
determines that termination of the temporary operator would cause
significant deterioration of the quality of, or access to, mental health
care in the community or that reappointment is necessary to correct the
deficiencies that required the appointment of the temporary operator,
the commissioner may authorize an additional ninety-day term. However,
such authorization shall include the commissioner's requirements for
conclusion of the temporary operatorship to be satisfied within the
additional term.
(2) Within fourteen days prior to the termination of each term of the
appointment of the temporary operator, the temporary operator shall
submit to the commissioner and to the established operator a report
describing:
a. the actions taken during the appointment to address the identified
mental health program deficiencies, the resumption of mental health

program operations by the established operator, or the transfer of the
patients to other providers licensed or operated by the office;
b. objectives for the continuation of the temporary operatorship if
necessary and a schedule for satisfaction of such objectives; and
c. if applicable, the recommended actions for the ongoing operation of
the mental health program subsequent to the temporary operatorship.
(3) The term of the initial appointment and of any subsequent
reappointment may be terminated prior to the expiration of the
designated term, if the established operator and the commissioner agree
on a plan of correction and the implementation of such plan.
(f) (1) The commissioner shall, upon making a determination of an
intention to appoint a temporary operator pursuant to paragraph one of
subdivision (b) of this section cause the established operator to be
notified of the intention by registered or certified mail addressed to
the principal office of the established operator. Such notification
shall include a detailed description of the findings underlying the
intention to appoint a temporary operator, and the date and time of a
required meeting with the commissioner and/or his or her designee within
ten business days of the receipt of such notice. At such meeting, the
established operator shall have the opportunity to review and discuss
all relevant findings. At such meeting, the commissioner and the
established operator shall attempt to develop a mutually satisfactory
plan of correction and schedule for implementation. In such event, the
commissioner shall notify the established operator that the commissioner
will abstain from appointing a temporary operator contingent upon the
established operator remediating the identified deficiencies within the
agreed upon timeframe.
(2) Should the commissioner and the established operator be unable to
establish a plan of correction pursuant to paragraph one of this
subdivision, or should the established operator fail to respond to the
commissioner's initial notification, there shall be an administrative
hearing on the commissioner's determination to appoint a temporary
operator to begin no later than thirty days from the date of the notice
to the established operator. Any such hearing shall be strictly limited
to the issue of whether the determination of the commissioner to appoint
a temporary operator is supported by substantial evidence. A copy of the
decision shall be sent to the established operator.
(3) If the decision to appoint a temporary operator is upheld such
temporary operator shall be appointed as soon as is practicable and
shall operate the mental health program pursuant to the provisions of
this section.
(g) Notwithstanding the appointment of a temporary operator, the
established operator shall remain obligated for the continued operation
of the mental health program so that such program can function in a
normal manner. No provision contained in this section shall be deemed to
relieve the established operator or any other person of any civil or
criminal liability incurred, or any duty imposed by law, by reason of
acts or omissions of the established operator or any other person prior
to the appointment of any temporary operator of the program hereunder;
nor shall anything contained in this section be construed to suspend
during the term of the appointment of the temporary operator of the
program any obligation of the established operator or any other person
for the maintenance and repair of the facility, provision of utility
services, payment of taxes or other operating and maintenance expenses
of the facility, nor of the established operator or any other person for
the payment of mortgages or liens.
(h) Upon appointment of a temporary operator, the commissioner shall
cause the temporary president of the senate, the speaker of the

assembly, and the chairs of the senate mental health and developmental
disabilities committee and the assembly mental health committee to be
notified of such determination. Such notification shall include, but not
be limited to, the name of the established operator, the name of the
appointed temporary operator and a description of the reasons for such
determination to the extent practicable under the circumstances and in
the sole discretion of the commissioner.
* NB Repealed March 31, 2025