In addition to section 602.2 of this Part, this section shall apply to hearings held pursuant to Mental Hygiene Law, section 16.05, which provides that the commissioner shall not deny any application or limit any initial operating certificate without giving the applicant an opportunity to be heard. Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

The decision to deny or limit an initial operating certificate shall be final, unless the applicant requests a hearing in writing within 10 days of service of notice of the proposed action to limit or deny. Such request shall be made to the commissioner, and shall include a copy of OPWDD's notice of proposed action. The request must also include a declaration of the issues alleged to be involved, and documentation of the provider's position as to each identified issue.

The hearing shall commence within 40 days of receipt of the hearing request, unless the hearing officer grants an adjournment.

The applicant shall present its case first. The burden of proof shall be on the applicant to demonstrate his or her ability to operate a facility in full compliance with all relevant laws and regulations, and of fulfillment of all criteria for initial certification.