“Policy‑Type” Per‑Day Violations, State COVID Authority, and Nursing Home Oversight: Commentary on Matter of Rensselaer County Dept. of Social Servs. v. McDonald

I. Introduction

The Appellate Division, Third Department’s decision in Matter of Rensselaer County Department of Social Services, as Operator of Van Rensselaer Manor v. McDonald, 2025 NY Slip Op 06943 (Dec. 11, 2025), sits at the intersection of pandemic emergency regulation, nursing home oversight, and New York administrative law.

The petitioner, Rensselaer County Department of Social Services, operates Van Rensselaer Manor, a long‑term care and skilled nursing facility in Troy, New York. The respondent, James McDonald, is the New York State Commissioner of Health. The dispute arose from the Department of Health’s (DOH) enforcement actions during the early months of the COVID‑19 pandemic, involving:

Premature resumption of in‑person outdoor visitation in July 2020 contrary to DOH’s COVID‑19 guidance;
Failure to ensure that visitors and residents properly complied with masking requirements during visitation; and
Refusal to grant DOH surveyors immediate, unconditional access to the facility during a September 30, 2020 inspection attempt.

After an administrative hearing, an Administrative Law Judge (ALJ) sustained three of four charges and recommended an $8,000 civil penalty. The Commissioner adopted the ALJ’s liability findings but increased the penalty to $42,000, primarily by treating the visitation misconduct as a separate violation on each day the facility was out of compliance.

In this CPLR article 78 proceeding (transferred to the Third Department because a “substantial evidence” issue was raised), the court:

Upheld all three sustained violations;
Approved DOH’s mid‑hearing amendment of a charge; and
Confirmed the Commissioner’s authority to dramatically increase the penalty using a “per‑day, policy‑type violation” framework, even in the absence of direct proof that prohibited conduct occurred on each individual day.

The decision reinforces the primacy of state DOH pandemic directives over more permissive federal guidance, clarifies DOH’s inspection authority, and—most significantly—endorses a structured distinction between:

“Policy‑type” violations, which may be penalized on a per‑day basis; and
“Event‑based” violations, penalized per observed instance of noncompliance.

II. Summary of the Opinion

A. Issues Before the Court

The Third Department addressed four main questions:

Whether substantial evidence supported DOH’s findings that Van Rensselaer Manor:
- Resumed in‑person outdoor visitation before state authorization and before submitting a required reopening plan (charge 1);
- Failed to ensure that visitors and residents complied with masking requirements (charge 2); and
- Improperly refused DOH surveyors access to the facility (charge 4).
Whether the ALJ abused her discretion by allowing DOH to amend charge 2 mid‑hearing under 10 NYCRR 51.6.
Whether the Commissioner violated due process by significantly increasing the civil penalty (from $8,000 to $42,000) while merely referencing DOH’s written exceptions rather than issuing a standalone, detailed penalty analysis.
Whether the $42,000 penalty was so disproportionate as to constitute an abuse of discretion as a matter of law under Public Health Law (PHL) § 12(1)(a) and the Kelly v Safir standard.

B. Holdings

The court held that:

Liability was supported by substantial evidence.
- Charge 1: The facility violated 10 NYCRR 400.2 by reopening outdoor visitation from July 6 to July 22, 2020, before DOH lifted the visitation ban and before submitting a NY Forward Safety Plan.
- Charge 2: The facility violated 10 NYCRR 415.19(a)(1) by failing to ensure visitor masking compliance during a July 23, 2020 inspection.
- Charge 4: The facility violated PHL § 2803(1)(a) by refusing DOH surveyors access on September 30, 2020, conditioning entry on proof of negative COVID tests and signed attestations.
The ALJ properly allowed amendment of charge 2. Striking language that limited the masking obligation to times when residents were positive or presumed positive for COVID‑19 did not cause substantial prejudice, and aligned the charge with the actual regulatory requirements.
The Commissioner’s use of DOH’s written exceptions to explain his penalty determination satisfied due process. Adopting those detailed exceptions “for the reasons stated” provided adequate findings for judicial review.
The $42,000 penalty was not an abuse of discretion.
- Charge 1: $32,000 for a “policy‑type” violation—$2,000 per day for the 16 days between July 6 and July 22, 2020.
- Charge 2: $8,000—$2,000 per each of four observed masking failures.
- Charge 4: $2,000—one violation for refusing surveyor access.
The court found this structure rational and not “shocking to one’s sense of fairness.”

Accordingly, the determination was confirmed in all respects and the petition dismissed.

III. Legal and Regulatory Framework

A. New York’s Infection Control & Compliance Requirements

10 NYCRR 415.19 (Infection Control Program)
Requires nursing homes to “establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment … and to help prevent the development and transmission of disease and infection.” Charge 2 was anchored in this provision.
10 NYCRR 400.2 (Obligation to Follow Law)
Obligates DOH‑licensed nursing homes to comply with:
“all pertinent Federal laws and regulations … applicable State law, … and codes, rules and regulations having general application.”
This broad compliance obligation was the legal hook for charge 1: by ignoring DOH’s COVID visitation directives, the facility violated 400.2.

B. Executive Orders & DOH COVID‑19 Health Advisories

Executive Order 202.1 (Gov. Cuomo)
Authorized DOH to issue binding guidance for COVID‑19 prevention and infection control in nursing homes and provided that DOH’s guidance:
“shall be effective immediately” and “supersede any prior conflicting guidance.”
March 13, 2020 DOH Health Advisory Memo
– Suspended “all visitation except when medically necessary.”
– Required facilities to provide “other methods to meet the social and emotional needs of residents,” such as video calls.
This ban remained in place until at least July 15, 2020.
July 10, 2020 DOH Health Advisory Memo
– Lifted the absolute ban and authorized nursing homes to commence outdoor and limited indoor visitation “as soon as July 15, 2020,”
– But only if they:
- Met specific benchmarks, and
- Developed and submitted a reopening plan under the NY Forward Safety Plan framework.
It also mandated masking for residents and visitors during visitation, central to charge 2.

C. Inspection Authority and Civil Penalties

PHL § 2803(1)(a)
Authorizes DOH to conduct periodic inspections of nursing homes to determine compliance with applicable laws and regulations. As interpreted in Uzzillia (discussed below), facilities must be “always open” to DOH inspections and may not condition or delay entry.
PHL § 12(1)(a)
Provides that a person who violates provisions of Chapter 45 of the PHL or any lawful regulation thereunder is liable for a civil penalty:
“not to exceed [$2,000] for every such violation.”
This is the statutory ceiling that frames the court’s discussion of the Commissioner’s penalty calculation.

IV. Court’s Legal Reasoning

A. Standard of Review: “Substantial Evidence”

Because DOH’s determination followed an evidentiary hearing, the court’s review was confined to whether the findings were supported by “substantial evidence” (citing Matter of Wegman v New York State Dept. of Health, 229 AD3d 862 [3d Dept 2024]).

Relying on the Court of Appeals in Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, 1045–46 (2018), the court restated that substantial evidence:

“is a minimal standard requiring less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable.”

That modest threshold frames the court’s willingness to uphold DOH’s findings so long as a reasonable person could reach the same conclusion based on the record—even if another conclusion might also be plausible.

B. Charge 1 – Premature Visitation & Failure to Submit a Reopening Plan

1. Nature of the Violation

Charge 1 alleged that the facility violated 10 NYCRR 400.2 by:

Resuming outdoor visitation on July 6, 2020, before DOH lifted the ban (which allowed reopening no earlier than July 15, 2020); and
Allowing visitation before filing a required NY Forward Safety Plan, which was not submitted until July 22, 2020.

In short, the facility unilaterally resumed in‑person visitation ahead of the state’s timetable and without satisfying the reopening prerequisites.

2. Evidence Supporting the Finding

The court pointed to several key pieces of documentary evidence:

July 1, 2020 Email to Families
From the assistant administrator, announcing that the facility was:
“putting the finishing touches on a new visitation plan that will take place on [the] front patio,”
and stating that visitation would “commence on Monday, July 6, 2020,” with masks required.
Patio Visitor Screening Logs
These logs showed that more than 50 visitors attended patio visits on July 6, 2020, confirming that in‑person visits actually occurred.
Surveyor Notes from the July 23, 2020 Inspection
These notes documented statements that visits occurred on at least two additional dates before the facility filed its NY Forward Safety Plan on July 22, 2020.

Given this record, the court found substantial evidence that the facility resumed visitation earlier than legally permitted and before satisfying the plan submission requirement, in violation of 10 NYCRR 400.2 and the DOH directives issued under Executive Order 202.1.

3. Rejection of the CMS‑Guidance Defense

The petitioner argued that June 2020 guidance from the federal Centers for Medicare & Medicaid Services (CMS) encouraged outdoor visitation as a “creative means” of maintaining resident–family connection. The court responded in two key ways:

No Preemption or Override of State DOH Guidance
The CMS guidance did not displace DOH’s March 13, 2020 Health Advisory banning visitation, which remained controlling in New York until at least July 15, 2020. Importantly, CMS itself stated that any relaxation of visitation should be done:
“in accordance with state and local officials.”
Thus, CMS guidance could not be invoked to justify ignoring stricter, state‑level mandates.
State DOH as the Primary Pandemic Regulator
Under Executive Order 202.1, DOH—not CMS—was the responsible authority for promulgating COVID infection‑control protocols in New York nursing homes. Therefore, facilities were bound by DOH’s more restrictive directives regardless of federal suggestions for creative visitation alternatives.

4. “Social and Emotional Needs” Argument

The facility contended it implemented outdoor visitation to meet residents’ social and emotional needs, pointing to language in the March 13 DOH memo that nursing homes “must provide other methods to meet the social and emotional needs of residents.”

The court acknowledged that language but noted that the statement:

Appeared in the same paragraph that imposed the visitation ban; and
Identified “video calls” as one example of acceptable alternative methods.

From this context, the court inferred that the “other methods” referenced were non‑in‑person mechanisms. Thus, the facility could not fairly read the memo as authorizing in‑person outdoor visits as a way to meet social and emotional needs.

Consequently, the court affirmed the finding that charge 1 was proven by substantial evidence.

C. Charge 2 – Failure to Enforce Masking Requirements

1. Regulatory Requirements

Charge 2 alleged a violation of 10 NYCRR 415.19(a)(1), the infection control program regulation. DOH’s July 10, 2020 Health Advisory—issued under that broader infection control authority—required:

Residents to wear a face mask or covering over both nose and mouth during visitation, if medically tolerated; and
Visitors to wear a face mask or covering over both nose and mouth “at all times when on the premises” of the nursing home.

The facility’s obligation was not just to have a policy on paper but to “ensure that visitors complied” with the masking mandate as part of a functioning infection control program.

2. Evidence of Noncompliance

The DOH surveyor who conducted the July 23, 2020 inspection testified that while she observed visitation in the vestibule:

Two residents and two visitors were “not properly wearing a mask.”
One visitor was talking on a cellphone with her mask off.
Another visitor had her mask below her chin.

Her contemporaneous notes:

Were consistent with her testimony; and
Reflected a conversation with an employee serving as a temporary visitation screener, who stated he was:
“not instructed to ensure [that] masks were worn properly or kept on throughout” patio visits.

The surveyor also testified there was nothing in her notes indicating that any of the observed visitors were medically exempt from masking.

Taken together, the observed instances of improper masking and the screener’s admission that he had not been instructed to enforce masking provided substantial evidence that the facility’s infection control program was inadequate in practice.

3. Mid‑Hearing Amendment of Charge 2

Originally, charge 2 alleged that the facility failed to ensure masking:

“when there were residents in the facility determined to be positive or presumed positive for COVID-19.”

DOH moved, during the March 2021 hearing date, to strike the italicized clause, arguing that the masking requirement applied regardless of whether any residents were currently positive or presumed positive. The ALJ granted the motion to amend under 10 NYCRR 51.6, which allows amendments:

“at any time prior to the submission of the hearing officer’s report … by leave of the hearing officer, if there is no substantial prejudice to any other party.”

The Third Department upheld this decision, emphasizing:

The amendment made the charge consistent with actual regulatory requirements (masking obligations did not hinge on the presence of positive cases);
The change removed an unnecessary element (the “positive or presumed positive” condition) while leaving the factual allegations intact; and
“Nothing in this record indicates [that] petitioner’s defense strategy would have been different” had the narrower, amended charge been articulated earlier (citing Matter of Mandelstam v McDonald, 229 AD3d 912, 917 [3d Dept 2024]).

By reference to Matter of Kosich v New York State Dept. of Health, 49 AD3d 980 (3d Dept 2008), the court treated this as a textbook application of the no‑substantial‑prejudice standard. The amendment did not inject new factual theories or expand the temporal or substantive scope of the charge; it simply corrected the legal framing.

D. Charge 4 – Refusal to Allow DOH Surveyors Access

1. Scope of DOH’s Inspection Authority

Charge 4 alleged that the facility violated PHL § 2803(1)(a) by refusing surveyors access on September 30, 2020. That statute authorizes DOH to “conduct periodic inspections” of licensed nursing homes, including “a survey to determine compliance by the facility with applicable statutes and regulations.”

The Third Department drew heavily on Uzzillia v Commissioner of Health of State of N.Y., 47 AD2d 492 (2d Dept 1975), which is a seminal case on DOH’s inspection powers. Uzzillia held:

DOH is charged with ensuring that “elderly and infirm persons entrusted to nursing homes are given the care and protection required by the health laws of this State.”
Nursing homes must “always be open” to DOH inspections designed to verify compliance.
Facilities may not insist:
- that inspections be by appointment, or
- that inspections await counsel’s clearance, or
- that inspections be delayed pending completion of administrative proceedings.

In short, DOH must have immediate and unconditional access to verify compliance; facilities cannot impose unilateral preconditions on entry.

2. Facts of the September 30, 2020 Incident

The record showed that:

Approximately seven surveyors arrived to perform a recertification and life safety survey.
They were screened by security for temperature and COVID symptoms, consistent with the facility’s protocols.
The facility’s administrator, however, refused to allow entry without proof of negative COVID‑19 tests, despite being shown a July 23, 2020 letter stating that state nursing home surveillance staff were subject to the same weekly testing standard as nursing home staff.
The facility later proposed an alternative: the surveyors would present ID and sign an attestation of a negative test, to be verified against the County’s electronic health data. The surveyors declined to sign such attestations and, on instruction from a supervisor, left the premises.
One surveyor testified that:
- She had previously entered the facility on July 23, 2020 without providing proof of a negative test; and
- Two phlebotomists on site reported they had never been asked to show proof of negative COVID tests to gain entry.

These details led the court to question the “sincerity” of the facility’s conduct—suggesting that the sudden insistence on test documentation for DOH surveyors, but not for other visitors like phlebotomists, looked more like obstruction than a uniform infection control policy.

3. Legal Conclusion

Applying Uzzillia, the court found substantial evidence that the facility’s refusal to permit entry unless DOH surveyors complied with additional requirements (test documentation and attestations) violated PHL § 2803(1)(a). The facility could not lawfully interpose those prerequisites as a condition to DOH’s statutory inspection right.

V. Penalty Analysis: Recognizing “Policy‑Type” Per‑Day Violations

A. Adequacy of the Commissioner’s Explanation

The facility argued that the Commissioner’s decision to substantially increase the penalty—from the ALJ’s recommended $8,000 to $42,000—was defective because he did not set out his own detailed penalty analysis. Instead, he:

Adopted the ALJ’s liability findings; but
Rejected the ALJ’s penalty recommendations “for the reasons stated in [DOH’s] exceptions,” and imposed the penalties requested by DOH.

The Third Department rejected the due process challenge, distinguishing cases like:

Matter of AGA Operating LLC v Zucker, 218 AD3d 1354 (4th Dept 2023); and
Matter of Goohya v Walsh-Tozer, 292 AD2d 384 (2d Dept 2002).

Those cases stand for the proposition that an agency must articulate findings and reasoning sufficient for meaningful judicial review. Here, DOH’s written exceptions already contained a “detailed analysis” justifying the requested penalties. By explicitly adopting those exceptions, the Commissioner effectively incorporated them into his final determination. The court found that this incorporation by reference provided adequate findings of fact and rationale, satisfying due process.

B. The Legal Framework for Penalty Review

The court invoked the familiar standard from Matter of Kelly v Safir, 96 NY2d 32, 38 (2001):

“Judicial review of an administrative penalty is limited to whether the measure or mode of penalty … imposed constitutes an abuse of discretion as a matter of law,” which occurs only when the penalty is “so disproportionate to the offense as to be shocking to one’s sense of fairness.”

It also reiterated that the Commissioner is not bound by an ALJ’s recommendations and may reach different factual or legal conclusions so long as:

They are supported by substantial evidence; and
The penalty remains within the statutory maximum (citing Matter of Walker v City of Plattsburgh, 212 AD3d 936, 938–39 [3d Dept 2023]).

PHL § 12(1)(a) authorizes up to $2,000 “for every such violation.” The interpretive question, therefore, is how to count “every such violation” in settings where misconduct is ongoing or policy‑driven rather than limited to discrete events.

C. Charge 1: “Policy‑Type” Violation and Per‑Day Penalties

The ALJ had recommended a $4,000 penalty for charge 1, reasoning that DOH supplied proof of visitation only on July 6 and July 22. DOH’s written exceptions urged a different approach:

Characterizing charge 1 as a “policy‑type violation”—i.e., a failure to have or adhere to a required policy—and
Arguing that such violations “naturally lend [themselves] to a per‑day violation analysis.”

Specifically, DOH sought $32,000 under charge 1:

$2,000 per day for 16 days, covering the period from July 6, 2020 (when outdoor visitation began) to July 22, 2020 (when the NY Forward Safety Plan was submitted).

Critically, DOH argued that this per‑day structure was justified even though the proof did not establish that visits occurred on each of those days. The violation consisted in being open for visitation contrary to DOH directives, not in the occurrence of any particular visit on any particular day.

The Third Department endorsed this reasoning:

The facility was required to remain closed to visitation until at least July 15, 2020; and
Even after that date, it could not lawfully permit visitation absent a submitted NY Forward Safety Plan (which it did not file until July 22).

Thus, the ongoing contravention of those directives could reasonably be treated as a continuing daily violation. The $32,000 total (16 days × $2,000) remained within the statutory maximum and was not an abuse of discretion.

This is the opinion’s most notable doctrinal contribution: It articulates and validates DOH’s concept of “policy‑type” per‑day violations, distinct from discrete event‑based violations. That framework grants DOH substantial leverage in enforcement, especially where noncompliance results from structural or policy decisions rather than isolated mistakes.

D. Charge 2: Event‑Based Penalties per Observed Masking Failure

For charge 2, the Commissioner imposed:

$8,000 total, representing $2,000 for each of four observed instances of improper masking.

The court expressly noted that this approach differed from the per‑day analysis used for charge 1. In its exceptions, DOH explained that (emphasis added):

Charge 1 involved “the failure to have in place a legally required policy”—a structural, policy‑type violation;
Charge 2 involved “the failure to ensure that a facility take specific actions required by law or policy”—namely, ensuring that individual residents and visitors wore masks properly.

Accordingly, DOH reasoned that it was logical to quantify charge 2 violations based on the number of specific, observed failures, not per day. The Third Department agreed that:

This distinction between policy‑type and event‑based violations was rational; and
An $8,000 penalty, within the $2,000‑per‑violation cap, was not an abuse of discretion.

E. Charge 4: Single Violation for Refusal of Surveyors

The Commissioner imposed a $2,000 penalty for charge 4, reflecting a single violation on September 30, 2020. Given Uzzillia’s strong language regarding DOH’s right to unhindered inspections, the Third Department easily found that penalty proportionate and within the Commissioner’s discretion.

VI. Key Precedents and Their Influence

A. RSRNC, LLC v McDonald

The court repeatedly cited its contemporaneous decision in RSRNC, LLC v McDonald, ___ AD3d ___, 239 NYS3d 330 (3d Dept 2025), particularly for:

The scope and enforceability of nursing home infection control obligations under 10 NYCRR 415.19;
The substantial evidence standard; and
Review of DOH’s enforcement determinations concerning COVID‑related protocols.

Although the full text of RSRNC is not reproduced here, the cross‑citation shows that the Third Department is building a coherent line of authority around DOH’s pandemic enforcement powers and nursing homes’ infection control duties, with Rensselaer County DSS as a companion piece.

B. Substantial Evidence Cases

Matter of Wegman v New York State Dept. of Health, 229 AD3d 862 (3d Dept 2024)
Cited for the rule that when an agency determination follows an evidentiary hearing, appellate review is confined to whether findings are supported by substantial evidence.
Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044 (2018)
Quoted directly for defining substantial evidence as a minimal standard requiring only a reasonable, plausible inference, not necessarily the most probable one.
Matter of C & C Tobacco/Chuck's Gas Mart, Inc. v Tompkins County Whole Health, 233 AD3d 1237 (3d Dept 2024)
Cited for consistency in applying that same standard in the context of public health enforcement.

C. Amendment and Prejudice in Administrative Proceedings

Matter of Kosich v New York State Dept. of Health, 49 AD3d 980 (3d Dept 2008)
Confirmed that an ALJ may permit amendment of charges so long as no substantial prejudice results—applied here to allow removal of an unnecessary limiting clause from charge 2.
Matter of Mandelstam v McDonald, 229 AD3d 912 (3d Dept 2024)
Quoted for the proposition that there is no substantial prejudice where the record does not indicate that the petitioner’s defense strategy would have been different had earlier notice of the amended language been given.
Matter of Murray v Murphy, 24 NY2d 150 (1969)
Cited as a contrasting example where late amendments or variances may violate due process when they meaningfully alter the charges after the fact. By contrast, Rensselaer County DSS involved a clarifying, not expanding, amendment.

D. Inspection Authority – Uzzillia

Uzzillia v Commissioner of Health of State of N.Y., 47 AD2d 492 (2d Dept 1975), appeal dismissed 37 NY2d 777, 786 (1975)
Provided the foundational statement on DOH’s nursing home inspection power. The Third Department quoted Uzzillia’s admonition that nursing homes must “always be open” to DOH inspections and may not insist on appointments, counsel approval, or delay. This precedent directly supported the finding that conditioning entry on COVID test proof and attestations violated PHL § 2803(1)(a).

E. Adequacy of Findings and Adoption of Exceptions

Matter of AGA Operating LLC v Zucker, 218 AD3d 1354 (4th Dept 2023) & Matter of Goohya v Walsh-Tozer, 292 AD2d 384 (2d Dept 2002)
These cases were cited for comparison, illustrating circumstances where agency determinations lacked adequate findings, thereby impeding judicial review. In contrast, the Third Department held that by explicitly adopting DOH’s detailed written exceptions, the Commissioner here supplied adequate reasoning.

F. Agency Discretion on Penalties

Matter of Walker v City of Plattsburgh, 212 AD3d 936 (3d Dept 2023)
Confirmed that an agency head is not bound by an ALJ’s recommended findings or penalties and may make different, independently supportable determinations.
Matter of Kelly v Safir, 96 NY2d 32 (2001)
Provided the controlling standard for judicial review of administrative penalties—the “shocking to one’s sense of fairness” test for abuse of discretion as a matter of law.

VII. Complex Concepts Simplified

A. What is a CPLR Article 78 Proceeding?

An Article 78 proceeding is a special New York court action used to challenge decisions of state or local agencies and officials. It asks questions like:

Was the agency decision supported by substantial evidence?
Did the agency act arbitrarily, capriciously, or in violation of law?
Did the agency exceed its jurisdiction or fail to follow required procedure?

When the challenge turns on whether the decision is supported by substantial evidence and there was a full hearing before an ALJ, the case is “transferred” to the Appellate Division for direct review.

B. “Substantial Evidence” vs. “Preponderance of Evidence”

Preponderance of the evidence (used in most civil trials) means “more likely than not”—just over 50% certainty.
Substantial evidence (used in administrative review) is a lower threshold. The court asks only whether the agency’s conclusion is reasonable and supported by evidence that a rational person could accept, even if other conclusions are possible.

C. “Policy‑Type” vs. “Event‑Based” Violations

Policy‑Type Violations
These arise from systemic, ongoing noncompliance with a required policy or structure—for example, keeping a facility open for visitation when rules say it must be closed, or failing to adopt a required infection control plan.

The DOH argued, and the court accepted, that such violations “naturally lend [themselves] to a per‑day violation analysis.” Each day the noncompliant policy remains in effect can be treated as a separate violation for purposes of penalties.
Event‑Based Violations
These are discrete occurrences—for example, each time a visitor is allowed to go unmasked contrary to rules. For these, it is logical to count each occurrence as one violation.

D. Amendment of Charges in Administrative Hearings

Administrative agencies often operate with more flexible pleading rules than courts. Under 10 NYCRR 51.6, a charge may be amended at any time before the ALJ’s report is submitted, if:

Leave is granted by the ALJ; and
There is no “substantial prejudice” to the other party.

“Substantial prejudice” usually means the amendment forces the respondent to defend a materially different accusation at a point when it is too late to gather evidence or revise its strategy. Clarifying the legal standard (as in removing an unnecessary limiting clause) without changing the factual basis is unlikely to be deemed prejudicial.

E. DOH Surveyors’ Access Rights

Under PHL § 2803(1)(a) and cases like Uzzillia, DOH surveyors have a right to enter nursing homes to conduct inspections:

Without prior appointment;
Without waiting for counsel approval; and
Without delay tied to ongoing disputes or administrative processes.

Facilities may apply consistent, legitimate safety protocols (e.g., temperature checks), but they cannot use ad hoc or selectively enforced measures—such as demanding additional documentation from DOH staff alone—to obstruct inspections.

F. Standard for Reviewing Agency Penalties

Courts are highly deferential to agency penalty choices. A penalty will be overturned only if:

It violates the statutory maximum; or
It is so extreme and disproportionate that it “shocks the conscience” or “one’s sense of fairness.”

The fact that a reviewing court might have imposed a lighter penalty itself does not justify vacatur; the question is whether the agency’s choice was within the wide range of acceptable outcomes.

VIII. Impact and Future Implications

A. For Nursing Homes and Long‑Term Care Facilities

The decision sends several clear messages to facilities regulated by DOH:

State DOH Guidance Controls Over More Permissive Federal Suggestions.
Facilities cannot rely on CMS guidance, no matter how well‑intentioned, to circumvent stricter DOH directives, particularly those issued under executive orders during an emergency.
Infection Control Must Be Operational, Not Merely On Paper.
It is not enough to have written policies. Staff must be trained and instructed to enforce those policies, as the testimony from the untrained visitation screener vividly illustrates.
Reopening Protocols Must Be Strictly Observed.
Any early or unauthorized resumption of visitation—however beneficial it may seem from a social or emotional perspective—can generate per‑day violations with substantial financial consequences.
Surveyor Access Cannot Be Conditioned or Obstructed.
DOH surveyors must be granted timely, unconditional access subject only to neutral, consistently enforced safety checks. Selective demands (like test proof for surveyors but not for other vendors) are likely to be viewed as obstruction.
Civil Penalty Exposure Can Escalate Quickly.
The court’s acceptance of per‑day “policy‑type” violations signals that sustained noncompliance over weeks can result in very large penalty exposure, even if direct harm or specific daily incidents are not documented for each day in question.

B. For DOH and Other Regulators

The opinion materially strengthens DOH’s enforcement position:

Penalty Structuring Flexibility.
The court validates a logical, two‑track approach:
- Per‑day counting for ongoing policy‑type violations; and
- Per‑occurrence counting for discrete noncompliant acts.
This gives regulators a principled way to calibrate penalties based on the character of the violation.
Use of Written Exceptions as Decision Rationale.
By permitting the Commissioner to adopt an advocate agency’s written exceptions as his own reasoning, the court affords agencies a streamlined mechanism for articulating detailed justifications without drafting separate, lengthy opinions in every case.
Affirmation of Broad Inspection Authority.
The reaffirmation of Uzzillia underscores that DOH’s inspection rights remain robust, even amid evolving health crises. Attempts to use infection‑control rationales as a pretext to limit or choreograph inspections are unlikely to withstand scrutiny.

C. For New York Administrative Law More Broadly

Beyond the nursing home context, the decision contributes to administrative law in several ways:

Clarification of “No Substantial Prejudice” in Amendments.
It illustrates when mid‑hearing amendments are permissible: when they clarify legal elements without changing the underlying facts or timeframes, and when they do not meaningfully alter the respondent’s defensive posture.
Endorsement of Incorporation‑by‑Reference Reasoning.
The decision approves the practice of an agency head expressly adopting a party’s detailed written submission as the rationale for a final determination, provided that submission is sufficiently robust to permit review.
Reinforcement of Deferential Penalty Review.
The case underscores that upward deviations from ALJ recommendations—even by multiples—will be upheld if justified in a rational, articulated manner within statutory limits.

IX. Conclusion

Matter of Rensselaer County DSS v. McDonald is a significant addition to New York’s developing body of pandemic‑era health enforcement jurisprudence. The Third Department:

Confirmed DOH’s broad authority to interpret and enforce state‑level COVID‑19 directives over more permissive federal guidance;
Reaffirmed that nursing homes must be strictly compliant with infection control rules, including visitor masking and reopening benchmarks;
Strengthened the longstanding principle that DOH surveyors enjoy immediate, unconditional access to facilities; and
Explicitly recognized a structured approach to penalties that distinguishes “policy‑type” per‑day violations from discrete, event‑based violations.

For regulators, the case validates aggressive, yet methodically reasoned, enforcement strategies. For facilities, it is a cautionary reminder that well‑intentioned deviations—such as early visitation to support residents’ emotional well‑being—must still yield to clear DOH directives, and that ongoing policy noncompliance can generate substantial, accumulating financial liability.

In the broader administrative law context, the decision exemplifies deferential but disciplined judicial review: insisting on substantial evidence, adequate reasoning, and statutory grounding, while otherwise leaving the details of enforcement and penalty calibration to the responsible agency.