§ 32.29 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.

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 that require the submission of an application for an operating
certificate or amendment to an operating certificate or certificate of
approval previously issued by the office of alcoholism and substance
abuse services; or which is likely to have an impact on state aid.

(b) The construction of a facility shall require the prior approval of
such commissioner if the provider of services seeking to engage in such
construction receives funding from the office of alcoholism and
substance abuse services pursuant to this chapter and/or seeks a funding
source for such construction project other than from the mental health
services facilities improvement program, or its successor agency,
directly or indirectly through a closely related entity.

1. An application for such construction together with such other forms
and information as shall be prescribed, shall be submitted to the office
of alcoholism and substance abuse services.

2. 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. The local governmental
unit shall report its recommendations on the proposed construction
within a reasonable time.

3. Upon receipt of the recommendations of the local governmental unit,
or upon the lapse of a reasonable time for comment by the local
governmental unit, the commissioner shall submit the application for
facilities other than community residences along with the
recommendations of the local governmental unit, if any, to the advisory
council on alcoholism and substance abuse services for its review and
recommendation. The commissioner shall not act upon an application for
construction of a facility other than a community residence without
having first given the advisory council on alcoholism and substance
abuse services a reasonable opportunity to make its recommendation on
the application, provided however, that the commissioner may act upon an
application for construction by an applicant possessing a valid
operating certificate when the applicant qualifies for review without
the recommendation of the council pursuant to regulations adopted by the
commissioner with the advice of the council in accordance with the
procedures noted in section 19.05 of this chapter.

(c) 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 and shall
not grant approval of an application for construction unless, based on
the information and advice received and his or her own review he or she
is satisfied as to (i) the public need for the facility or the services
at the time and place and under the circumstances proposed, taking into
consideration local, regional, and statewide need; (ii) the absence of
availability and feasibility for development of facilities or services
which may serve as alternatives or substitutes for the whole or any part
of the proposed construction; (iii) the overall financial condition of
the applicant, through review of audited financial statements, taking
into consideration the adequacy of financial resources and sources of
future revenue; (iv) the absence of more efficient architectural
solutions to construction proposed; and (v) the sufficiency of such
other matters as he or she may deem pertinent in the public interest.

(d) If the commissioner proposes to disapprove an application for
construction of a facility, he or she shall afford the applicant an
opportunity to be heard in accordance with subdivision (e) of this
section. The commissioner shall not take any action contrary to the
recommendation of the advisory council on alcoholism and substance abuse
services, unless he or she first appears before the council and explains
his or her reasons therefor. The commissioner shall not take any action
contrary to the advice of the local governmental unit for facilities
other than community residences until he or she affords an opportunity
to the local governmental unit to request a public hearing and if so
requested, a public hearing shall be held in accordance with subdivision
(e) of this section. The commissioner, on his or her own motion, may
hold a hearing on an application for construction of a facility.

(e) At the public hearing the commissioner shall outline all pertinent
matters regarding the application. Thereafter, any person in attendance
shall be given a reasonable opportunity to present an oral or written
statement and to submit other documents concerning the application for
construction. A record of the hearing shall be kept, including written
statements submitted. Copies of such record shall be available to the
public for examination without cost during normal business hours at the
office of alcoholism and substance abuse's central office. Copies shall
be reproduced upon written request and payment of the cost thereof.
Further adjourned hearings may be scheduled.

(f) Nothing in this section shall limit the application of provisions
of article twenty-eight of the public health law.