§ 16.03 Operating certificate required.

(a) No provider of services shall engage in any of the following
activities without an operating certificate issued by the commissioner
pursuant to this article:

(1) Operation of a residential facility for the care and treatment of
persons with developmental disabilities including a family care home.

(2) Operation of any distinct part of a general hospital or other
facility possessing an operating certificate, pursuant to article
twenty-eight of the public health law, operated for the primary purpose
of providing residential or non-residential services for persons with
developmental disabilities.

(3) Operation of a facility established or maintained by a public
agency, board, or commission, or by a corporation or voluntary
association for the rendition of out-patient or non-residential services
for persons with developmental disabilities; provided, however, that
such operation shall not be deemed to include (i) professional practice,
within the scope of a professional license or certificate issued by an
agency of the state, by an individual practitioner or by a partnership
of such individuals or by a professional service corporation duly
incorporated pursuant to the business corporation law or by a university
faculty practice corporation duly incorporated pursuant to the
not-for-profit corporation law or (ii) non-residential services which
are licensed, supervised, or operated by another agency of the state and
non-residential services which are chartered or issued a certificate of
incorporation pursuant to the education law or (iii) pastoral counseling
by a clergyman or minister, including those defined as clergyman or
minister by section two of the religious corporations law.

(4) The provision of home and community based services approved under
a waiver program authorized pursuant to section eleven hundred fifteen
of the federal social security act or subdivision (c) of section
nineteen hundred fifteen of the federal social security act and
subdivisions seven and seven-a of section three hundred sixty-six of the
social services law, provided that an operating certificate issued
pursuant to this paragraph shall only authorize services in a home or
community setting.

(5) The provision of services approved in a medicaid state plan
authorized pursuant to section nineteen hundred two of the federal
social security act, including optional state plan services authorized
pursuant to subdivision (g) of section nineteen hundred fifteen of the
federal social security act, and designated by the commissioner of
health, in consultation with the commissioner, as being for persons with
developmental disabilities.

(b) The commissioner shall enter into a cooperative agreement with the
commissioner of education with respect to all issues regarding
certification under this article of providers of non-residential
services which are chartered or issued a certificate of incorporation
pursuant to the education law.

(c) The commissioner shall enter into a cooperative agreement with the
commissioner of health with respect to all issues regarding
certification under this article of providers of services possessing an
operating certificate pursuant to article twenty-eight of the public
health law.

(d) The operation of a facility or provision of services for which an
operating certificate is required pursuant to this article shall be in
accordance with the terms of the operating certificate and the
regulations of the commissioner.

(e) Any provider of services who knowingly fails to comply with the
provisions of this section shall be guilty of a misdemeanor.

(f) Any provider of services that holds an operating certificate
pursuant to paragraph four of subdivision (a) of this section, shall be
authorized to employ or contract with persons licensed to practice
nursing pursuant to article one hundred thirty-nine of the education
law; employ or contract with exempt individuals authorized to perform
tasks pursuant to subparagraph (v) of paragraph a of subdivision one of
section sixty-nine hundred eight of the education law; or contract with
entities legally authorized to employ persons licensed to practice
nursing pursuant to article one hundred thirty-nine of the education law
or exempt individuals authorized to perform tasks pursuant to
subparagraph (v) of paragraph a of subdivision one of section sixty-nine
hundred eight of the education law; provided that such exempt
individuals shall only be authorized to provide those tasks delegated
pursuant to subparagraph (v) of paragraph a of subdivision one of
section sixty-nine hundred eight of the education law.

(g) No provision of this article or any other provision of law shall
be construed to require a provider licensed pursuant to article
twenty-eight of the public health law or certified pursuant to article
thirty-one or thirty-two of this chapter to obtain an operating
certificate from the office for people with developmental disabilities
if such provider has been authorized to provide integrated services in
accordance with regulations issued by the commissioner of the office for
people with developmental disabilities, in consultation with the
commissioner of the department of health, the commissioner of the office
of mental health and the commissioner of the office of alcoholism and
substance abuse services, including regulations issued pursuant to
subdivision seven of section three hundred sixty-five-l of the social
services law or part L of chapter fifty-six of the laws of two thousand
twelve.