§ 16.09 Approval of new construction.

(a) As used or referred to in this section, unless a different meaning
clearly appears from the context:

(1) "Facility" is limited to a facility in which services are offered
for which an operating certificate is required by this article. For the
purposes of this section facility shall include family care homes but
shall not include the provision of services, as defined in paragraph
four of subdivision (a) of section 16.03 of this article, outside of a
facility.

(2) "Construction" means the erection, building, or substantial
acquisition, alteration, reconstruction, improvement, extension or
modification of a facility, including its equipment, the inspection and
supervision thereof; and the studies, surveys, designs, plans, working
drawings, specifications, procedures, and other actions necessary
thereto.

(b) The construction of a facility, whether public or private,
incorporated or not incorporated, shall require the prior approval of
the commissioner. An application for such construction shall be filed
with the office, together with such other forms and information as shall
be prescribed by, or acceptable to, the office. Thereafter, the office
shall forward for comment a copy of the application and accompanying
documents to the local governmental unit responsible for community
services for the mentally disabled where the facility is to be located,
and, for facilities other than community residences, to the concerned
health systems agency. The commissioner shall not act upon an
application for construction of a facility unless the applicant has
obtained all approvals and consents required by law for its
incorporation or establishment. The commissioner in approving the
construction of a facility shall take into consideration and is
empowered to request information and advice from all available sources
including local and area mental hygiene and health planning agencies and
groups as to (i) the availability of facilities or services which may
serve as alternatives or substitutes for the whole or any part of the
proposed construction and (ii) the adequacy of financial resources and
sources of future revenue and (iii) the public need for the facility or
the services, for facilities other than community residences, at the
time and place and under the circumstances proposed. If the commissioner
proposes to disapprove an application for construction of a facility, he
shall afford the applicant an opportunity to be heard. The commissioner,
on his own motion, may hold a hearing on an application for construction
of a facility.

(c) In determining whether there is a public need for any services or
facilities, for facilities other than community residences, as required
by this article, the commissioner shall consider the advice of the state
health planning and development agency designated pursuant to the
provisions of the national health planning and resources development act
of nineteen hundred seventy-four and any amendments thereto. The
commissioner shall not take any action contrary to the advice of the
health systems agency for facilities other than community residences
until he affords an opportunity to the agency to request a public
hearing and, if so requested, a public hearing shall be held.