N.Y. Comp. Codes R. & Regs. tit. 9 § 7405.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 7405.6 - Hearing proceedings

(a) A resident charged with a rule violation for which a hearing is required shall be served with a notice of hearing no later than eight business days after the rule violation report is issued pursuant to section 7405.3(e) of this Part.

(b) Such written notice of hearing shall be given to the resident at least 24 hours prior to the commencement of the hearing, and such hearing shall be completed within five business days of commencement, unless a delay is authorized by the Deputy Commissioner of Rehabilitative Services or designee. When such a delay is authorized, the record of the hearing should reflect the reasons for delay or adjournment and the resident should be made aware of these reasons unless to do so would jeopardize the safety, security, or good order of the facility or the safety or security of another person. The time frames required by this subdivision may be waived by the resident, but such waiver shall not be effective unless made in writing.

(c) The facility director shall serve, or appoint an impartial person to serve, as a hearing officer to conduct the hearing proceedings.

(d) Residents shall be allowed to be present at the hearing unless the resident has waived the right to be present or the hearing officer determines that the resident's presence will jeopardize the safety, security, or good order of the facility, or the safety, security, or the health of another person. A waiver of the right to be present shall be made in writing and signed by the resident. If the resident refuses to sign such waiver, it shall be noted in the record. The hearing officer's determination that a resident's presence will jeopardize the safety, security, or good order of the facility or the safety, security, or the health of another person shall be documented in the hearing record.

(e) Residents shall be given the opportunity to speak on their behalf at the hearing, and shall be permitted to call witnesses and present evidence in their defense if relevant and not redundant, and when doing so would not jeopardize the safety, security, or good order of the facility or the safety, security, or the health of another person. A hearing officer's determination that the presence of a particular witness or the introduction of particular evidence is irrelevant, redundant, or will jeopardize the safety, security, or good order of the facility or the safety, security, or the health of another person shall be documented in the hearing record.

(f) If the hearing officer calls witnesses, the resident may submit questions directed toward such witnesses to the hearing officer. The hearing officer shall pose such questions to the witness if relevant and not redundant, and when doing so would not jeopardize the safety, security, or good order of the facility. The hearing officer may restate such question if it is unclear or improper in form. A hearing officer's determination that a particular question is irrelevant, redundant, or will jeopardize the safety, security, or good order of the facility or the safety, security, or the health of another person shall be documented in the hearing record.

(g) Residents may be excluded from the hearing during the interview of witnesses in accordance with subdivision (d) of this section. The content of such interview shall be provided to the resident, except for such information that, if provided, would jeopardize the safety, security, or good order of the facility, or the safety, security, or the health of another person.

(h) No charges other than those contained in the rule violation report shall be presented during the course of the hearing. Any additional charges brought against the resident shall be treated as new charges and shall be subject to the requirements of this Part.

(i) A disposition shall be reached within five business days of the conclusion of the hearing. The disposition shall be supported by evidence, shall be in writing, and shall contain the following:

(1) a finding of guilt or innocence on each charge of a rule violation;

(2) the evidence relied upon by the hearing officer in reaching such finding; and

(3) the sanction(s) imposed, if any.

(j) A copy of the disposition shall be provided to the resident.

(k) Nothing in this Part shall preclude the use of plea bargaining.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 7405.6

Renumbered from subtitle AA of chapter III New York State Register April 11, 2018/Volume XL, Issue 15, eff. 4/11/2018