§ 31.02 Operating certificate required.

(a) Except as provided in subdivision (b) of this section 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 or institution, including a
community residence, for the care, custody, or treatment of the mentally
disabled; provided, however, that giving domestic care and comfort to a
person in the home shall not constitute such an operation.

2. operation of any part of a general hospital for the purpose of
providing residential or non-residential services for the mentally
disabled.

3. operation of a facility established or maintained by a public
agency, board, or commission, or by a corporation for the rendition of
out-patient or non-residential services for the mentally disabled;
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 nonresidential 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. operation of a residential treatment facility for children and
youth.

5. operation of a residential care center for adults.

* 6. operation of a comprehensive psychiatric emergency program.

* NB Repealed July 1, 2024

(b) A provider of services operating a community residence on April
first, nineteen hundred seventy-six, shall be issued an operating
certificate by the commissioner without requiring proof that there is a
public need for such residence, providing application for such operating
certificate to the department in accordance with this article is
submitted prior to September first, nineteen hundred seventy-six.
Pending the determination of any such application the continuance of
such operation shall be lawful. An application pursuant to this section
shall be deemed filed with the department upon being mailed to the
department by registered or certified mail.

(c) The operation of a facility for which an operating certificate is
required shall be in accordance with the terms of the operating
certificate and the regulations of the commissioner.

(d) Any provider of services who knowingly fails to comply with the
provisions of this section or of section 31.03 of this article shall be
guilty of a misdemeanor.

(e) If the commissioner has reason to believe that there is a provider
of services for the mentally disabled who does not possess a required
current valid operating certificate, he or she shall proceed pursuant to
applicable sections of this chapter including but not limited to
sections 31.07, 31.09, 31.11, 31.13 and 31.21 of this article.

(f) 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
sixteen or article thirty-two of this chapter to obtain an operating
certificate from the office of mental health if such provider has been
authorized to provide integrated services in accordance with regulations
issued by the commissioner of the office of mental health in
consultation with the commissioner of the department of health, the
commissioner of the office of alcoholism and substance abuse services
and the commissioner of the office for people with developmental
disabilities, 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.