§ 31.23 Approval of new construction.

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

"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.

"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) 1. The construction of a facility for which an operating
certificate issued by the commissioner of mental health is required
pursuant to article thirty-one of this chapter shall require the
approval of the commissioner of mental health. An application for such
construction shall be submitted to the office of mental health. The
office shall forward a copy of the application for approval of the
proposed construction, and any 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 family care homes, community residences or residential care centers
for adults, to the concerned health systems agency. The local
governmental unit and health systems agency shall report their
recommendations on the proposed construction within a reasonable time.
Upon receipt of the recommendations of the local governmental unit and
the health systems agency, or upon the lapse of a reasonable time for
comment by the local governmental unit or health systems agency, the
commissioner shall submit the application for facilities other than
family care homes, community residences or residential care centers for
adults along with the recommendations of the local governmental unit or
health systems agency to the mental health services council for its
review and comment. The commissioner shall not act upon an application
for construction of a facility other than a family care home, community
residence or residential care center for adults without having first
given the mental health services council a reasonable opportunity to
make a recommendation about the application.

2. 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; (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 family care
homes, community residences or residential care centers for adults, 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 in
the same manner as prescribed in section 31.17 of this article. The
commissioner shall not take any action contrary to the advice of the
health systems agency for facilities other than family care homes,
community residences or residential care centers for adults until he
affords an opportunity to the agency to request a public hearing and if
so requested, a public hearing shall be held. The commissioner, on his
own motion, may hold a hearing on an application for construction of a
facility.

3. Nothing in this subdivision shall limit the application of
provisions of article twenty-eight of the public health law.

(c) The commissioner may submit any plans for construction including a
substantial change in bed capacity, of a facility operated by the office
of mental health, other than a community residence, residential care
center for adults or family care home, to the local governmental unit
responsible for community services for the mentally disabled where the
facility is located, to the concerned health systems agency and to the
mental health services council, for their review and recommendations in
accordance with this section.