ALTHOUGH PETITIONER NURSING HOME, A LIMITED LIABILITY COMPANY, HAD AN EXCELLENT INFECTION CONTROL PROGRAM, IT WAS PROPERLY FINED FOR A VIOLATION OF THE INFECTION-CONTROL REGULATIONS BY ONE OF ITS EMPLOYEES (THIRD DEPT).

The Third Department, confirming the findings of the administrative law judge, in a full-fledged opinion by Justice Egan, determined the petitioner nursing-home-facility was subject to fines for violations of the COVID-19 infection-control regulations. The regulations required nursing home employees to change gowns and glove after being in a unit with COVID-19 positive residents. The court noted that petitioner, as a limited liability company, can be penalized for the intentional violation of regulations by its employees under an agency theory:

… [P]etitioner [limited liability company], like corporations and similar entities, may be penalized “for the intentional acts of its agents that are either (1) in violation of positive prohibitions or commands of statutes regarding corporate acts, (2) authorized through action of its officers or which are done with the acquiescence of its officers, or (3) performed on behalf of the corporation if undertaken within the scope of the agents’ authority, real or apparent” … . As it is alleged here that a regulation governing petitioner’s conduct was intentionally violated by one of its employees in the course of his work, petitioner may be penalized for that conduct, if proven. * * *

Petitioner had no deficiencies in the five infection control surveys conducted in the months leading up to the December 2020 survey, counsel for the Department conceded at the hearing that it “had a great infection control program for many months,” and the surveyor who witnessed the violation acknowledged that petitioner had developed an appropriate infection control plan and properly trained employees about their obligations under it. Respondent was nevertheless free to credit the proof that the aide violated that policy on one occasion in December 2020 and, notwithstanding petitioner’s efforts to argue otherwise, we are satisfied that such constitutes substantial evidence in the record for the determination that petitioner’s employee “violate[d], disobey[ed] or disregard[ed]” multiple provisions of 10 NYCRR 415.19 and the infection control program in the course of his work and that such rendered petitioner liable (Public Health Law § 12). Matter of RSRNC, LLC v McDonald, 2025 NY Slip Op 04131, Third Dept 7-10-25

Practice Point: Here a violation of Public Health Law regulations concerning COVID-19 infection control by an employee of petitioner nursing home, a limited liability company, warranted imposing a penalty on the nursing home.