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This entry was published on 2021-10-22
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SECTION 31.04
Regulatory powers of the commissioner
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 31
§ 31.04 Regulatory powers of the commissioner.

(a) The commissioner shall have the power to adopt regulations to
effectuate the provisions and purposes of this article, including, but
not limited to, the following:

1. establishing classes of operating certificates based upon such
factors as physical plant, program, and staff.

2. setting standards of quality and adequacy of facilities, equipment,
personnel, services, records, and programs for the rendition of services
for the mentally disabled pursuant to an operating certificate.

3. specifying a definite period for which the operating certificate
will be in effect for each class.

* 4. establishing procedures for the issuance, amendment, and renewal
of operating certificates, including temporary operating certificates,
and for the suspension or revocation of operating certificates. Such
procedures shall specify that no application for the issuance or renewal
of an operating certificate for a hospital, which is operated as part of
a hospital as defined in article twenty-eight of the public health law,
shall be effective until such hospital is granted approval to admit
patients in emergencies for immediate observation, care and treatment in
accordance with section 9.39 or 9.40 of this chapter, provided that the
commissioner shall waive this requirement for two year periods upon his
determination that (i) there is no need for additional beds for
emergency psychiatric admissions in the local geographic area, (ii) the
hospital lacks the physical capacity to reasonably accommodate such
emergency admissions without extensive structural changes, (iii) the
hospital does not and reasonably could not provide the scope of services
necessary to assure adequate and appropriate psychiatric care and
treatment for patients in emergency situations, or (iv) the hospital has
agreed to accept referrals of involuntary psychiatric patients under an
emergency admissions system which has been approved by the commissioner.
Provided, however, nothing in this paragraph shall be interpreted to
require a hospital without an onsite emergency room to accept patients
in need of emergency observation, care and treatment.

* NB Effective until July 1, 2024

* 4. establishing procedures for the issuance, amendment, and renewal
of operating certificates, including temporary operating certificates,
and for the suspension or revocation of operating certificates. Such
procedures shall specify that no application for the issuance or renewal
of an operating certificate for a hospital, which is operated as part of
a hospital as defined in article twenty-eight of the public health law,
shall be effective until such hospital is granted approval to admit
patients in emergencies for immediate observation, care and treatment in
accordance with section 9.39 of this chapter, provided that the
commissioner shall waive this requirement for two year periods upon his
determination that (i) there is no need for additional beds for
emergency psychiatric admissions in the local geographic area, (ii) the
hospital lacks the physical capacity to reasonably accommodate such
emergency admissions without extensive structural changes, (iii) the
hospital does not and reasonably could not provide the scope of services
necessary to assure adequate and appropriate psychiatric care and
treatment for patients in emergency situations, or (iv) the hospital has
agreed to accept referrals of involuntary psychiatric patients under an
emergency admissions system which has been approved by the commissioner.
Provided, however, nothing in this paragraph shall be interpreted to
require a hospital without an onsite emergency room to accept patients
in need of emergency observation, care and treatment.

* NB Effective July 1, 2024

5. setting for the operation of certified family care homes standards
governing adequacy of the building and equipment, fire protection,
safety, sanitation, food service, programs for the rendition of service,
recreation and religious participation, medical services, personnel,
insurance, record keeping procedures and statistical records as well as
appropriate standards governing or precluding ownership of more than one
such home.

6. establishing criteria for use by staff of department facilities,
social services officials and directors of local governmental units for
determining the appropriateness of referring patients to family care
homes, other community residences and residential care centers for
adults.

7. establishing criteria for determining the public need for family
care homes, other community residences and residential care centers for
adults in each geographical area of the state.

8. establishing a schedule of fees for the purpose of processing
applications for the issuance of operating certificates. All fees
pursuant to this section shall be payable to the office for deposit into
the general fund.

* (b) The commissioner shall promulgate regulations establishing
criteria for the operation of certified comprehensive psychiatric
emergency programs including but not limited to criteria governing the
staffing, staff qualifications, equipment, record keeping, safety
requirements, required services, discharge planning, appropriate
linkages to alcohol and substance abuse programs, space requirements,
quality and adequacy of such programs, and the required posting of a
notice of patient rights. In addition, the regulations shall require
such programs to include appropriate facilities to permit persons to
rest comfortably while awaiting observation, care or treatment.

* NB Repealed July 1, 2024

* (c) Prior to the adoption, amendment, suspension or repeal of any
regulation under this article, the commissioner shall give notice and
offer any person or other agency an opportunity to present data, views,
or arguments, as follows:

1. The commissioner shall, at least sixty days prior to the adoption,
amendment, suspension or repeal of a regulation, notify the mental
health services council for its advice, in accordance with subdivision
(i) of section 7.05 of this chapter.

2. The commissioner shall, at least twenty-one days prior to the
adoption, amendment, suspension or repeal of a regulation, (i) publish
notice of its proposed action in the state bulletin and, when
appropriate in the judgment of the commissioner, in such newspaper or
newspapers of general circulation or, in such professional publications
as the commissioner may select, and (ii) notify any person or agency
filing written request, such request to be renewed yearly in December,
for notice of proposed action which may affect that person or agency,
notification being by mail or otherwise in writing to the last address
specified by the person or agency. The commissioner may charge for such
notice a fee, which shall consist of the cost of preparation, handling,
and postage for the notice.

3. The notice shall (i) refer to the statutory authority under which
the action is proposed, (ii) give the time and place of any public
hearing, or state the manner in which data, views, or arguments may be
submitted to the commissioner by any person or state agency, whether
orally or in writing, (iii) either state the express terms or indicate
where the express terms may be obtained and describe the substance of
the proposed regulation, amendment, suspension or repeal, or state the
subjects and issues involved, and (iv) include any additional matter
required by any statute.

4. Irrespective of the requirements of any other statute, if the
commissioner finds that it is necessary for the preservation of the
public health, safety, or general welfare to dispense with the
requirements of notice and opportunity to present views on the proposed
regulation, amendment, suspension, or repeal under the provisions of
this subdivision, the commissioner may dispense with such requirements,
or any part thereof, and adopt the regulation, amendment, suspension, or
repeal as an emergency measure. The commissioner's finding and a brief
statement of the reasons for his finding shall accompany the emergency
measure. Such emergency measure shall not remain in effect for longer
than sixty days unless within that time the commissioner complies with
paragraphs (1) and (2) of this subdivision, and takes final action
relating to the emergency measure.

5. Upon the adoption, amendment, suspension, or repeal of a
regulation, the commissioner shall publish notice of the action taken in
the state bulletin. The notice shall refer to the statutory authority
under which the action was taken and shall include either the express
terms or describe the substance of such action and where the express
terms may be obtained.

6. No regulation hereafter adopted is valid unless adopted in
substantial compliance with this subdivision, provided, however, that
the inadvertent failure to mail notice to any person or agency as
provided in this subdivision shall not invalidate any regulation adopted
hereunder. A proceeding to contest any regulation on the ground of
non-compliance with the procedural requirements of this subdivision must
be commenced within four months from the effective date of the
regulation.

7. The validity or applicability of any regulation may be determined
upon petition presented under article four of the civil practice law and
rules or in an action for a declaratory judgment when it appears that
the regulation or its threatened application interferes with or impairs,
or threatens to interfere with or impair, the legal rights, property or
privileges of the petitioner. The department shall be made a party to
the proceedings. Such a special proceeding may not be maintained or a
declaratory judgment rendered unless the petitioner has first requested
the commissioner to pass upon the validity or applicability of the
regulation in question. The court shall declare the regulation invalid
or inapplicable if it finds that it violates constitutional provisions
or exceeds the statutory authority of the department. Nothing in this
section shall be construed to prohibit the determination of the validity
or applicability of the regulation in any other action or proceeding in
which its invalidity or inapplicability is asserted, and nothing in this
section shall be construed to limit any rights which may exist under
article seventy-eight of the civil practice law and rules.

* NB Effective until July 1, 2024--on which date this subdivision (c)
becomes subdivision (b)

(d) The commissioner of mental health shall be authorized to
promulgate regulations which impose reasonable restrictions on the
marketing and advertising practices by or on behalf of any facility,
which are targeted toward the provision of services to persons aged
twenty-one years or younger. These reasonable restrictions may include,
but not be limited to, prohibitions against false, deceptive or
misleading advertising. However, the regulations may not restrict
advertising which solely provides factual information that describes the
product or services offered or information regarding the cost of
products or services, nor may the regulations require prior submission
or approval of advertising by the office of mental health. The
commissioner shall be authorized to inquire into the marketing practices
of any applicant or holder of an operating certificate.

(e) The commissioner shall promulgate rules and regulations
prohibiting the co-mingling of children and adolescent patients with
adult patients, in hospitals licensed by the office. Such rules and
regulations shall provide that children and adolescents shall not be
co-mingled with adults in residential areas of such hospitals, nor shall
children and adolescents receive services in groups which include
adults. In extraordinary circumstances, such co-mingling may be
permitted upon written approval of the office, considering the clinical
needs of patients, as well as applicable health and safety concerns. The
provisions of this subdivision shall not apply to residential treatment
facilities for children and youth.