N.Y. MHY Law § 32.29 — New York Code / Act MHY / Title E / Article 32 / Section 32.29
Approval of new construction
Status: in_force

§ 32.29 Approval of new construction.\n  (a) As used or referred to in this section, unless a different meaning\nclearly appears from the context:\n  1. "Facility" is limited to a facility in which services are offered\nfor which an operating certificate is required by this article.\n  2. "Construction" means the erection, building, or substantial\nacquisition, alteration, reconstruction, improvement, extension or\nmodification of a facility, including its equipment, the inspection and\nsupervision thereof; and the studies, surveys, designs, plans, working\ndrawings, specifications, procedures, and other actions necessary\nthereto that require the submission of an application for an operating\ncertificate or amendment to an operating certificate or certificate of\napproval previously issued by the office of alcoholism and substance\nabuse services; or which is likely to have an impact on state aid.\n  (b) The construction of a facility shall require the prior approval of\nsuch commissioner if the provider of services seeking to engage in such\nconstruction receives funding from the office of alcoholism and\nsubstance abuse services pursuant to this chapter and/or seeks a funding\nsource for such construction project other than from the mental health\nservices facilities improvement program, or its successor agency,\ndirectly or indirectly through a closely related entity.\n  1. An application for such construction together with such other forms\nand information as shall be prescribed, shall be submitted to the office\nof alcoholism and substance abuse services.\n  2. The office shall forward a copy of the application for approval of\nthe proposed construction, and any accompanying documents, to the local\ngovernmental unit responsible for community services for the mentally\ndisabled where the facility is to be located. The local governmental\nunit shall report its recommendations on the proposed construction\nwithin a reasonable time.\n  3. Upon receipt of the recommendations of the local governmental unit,\nor upon the lapse of a reasonable time for comment by the local\ngovernmental unit, the commissioner shall submit the application for\nfacilities other than community residences along with the\nrecommendations of the local governmental unit, if any, to the advisory\ncouncil on alcoholism and substance abuse services for its review and\nrecommendation. The commissioner shall not act upon an application for\nconstruction of a facility other than a community residence without\nhaving first given the advisory council on alcoholism and substance\nabuse services a reasonable opportunity to make its recommendation on\nthe application, provided however, that the commissioner may act upon an\napplication for construction by an applicant possessing a valid\noperating certificate when the applicant qualifies for review without\nthe recommendation of the council pursuant to regulations adopted by the\ncommissioner with the advice of the council in accordance with the\nprocedures noted in section 19.05 of this chapter.\n  (c) The commissioner shall not act upon an application for\nconstruction of a facility unless the applicant has obtained all\napprovals and consents required by law for its incorporation or\nestablishment. The commissioner, in approving the construction of a\nfacility, shall take into consideration and is empowered to request\ninformation and advice from all available sources including local and\narea mental hygiene and health planning agencies and groups and shall\nnot grant approval of an application for construction unless, based on\nthe information and advice received and his or her own review he or she\nis satisfied as to (i) the public need for the facility or the services\nat the time and place and under the circumstances proposed, taking into\nconsideration local, regional, and statewide need; (ii) the absence of\navailability and feasibility for development of facilities or services\nwhich may serve as alternatives or substitutes for the whole or any part\nof the proposed construction; (iii) the overall financial condition of\nthe applicant, through review of audited financial statements, taking\ninto consideration the adequacy of financial resources and sources of\nfuture revenue; (iv) the absence of more efficient architectural\nsolutions to construction proposed; and (v) the sufficiency of such\nother matters as he or she may deem pertinent in the public interest.\n  (d) If the commissioner proposes to disapprove an application for\nconstruction of a facility, he or she shall afford the applicant an\nopportunity to be heard in accordance with subdivision (e) of this\nsection. The commissioner shall not take any action contrary to the\nrecommendation of the advisory council on alcoholism and substance abuse\nservices, unless he or she first appears before the council and explains\nhis or her reasons therefor. The commissioner shall not take any action\ncontrary to the advice of the local governmental unit for facilities\nother than community residences until he or she affords an opportunity\nto the local governmental unit to request a public hearing and if so\nrequested, a public hearing shall be held in accordance with subdivision\n(e) of this section. The commissioner, on his or her own motion, may\nhold a hearing on an application for construction of a facility.\n  (e) At the public hearing the commissioner shall outline all pertinent\nmatters regarding the application. Thereafter, any person in attendance\nshall be given a reasonable opportunity to present an oral or written\nstatement and to submit other documents concerning the application for\nconstruction. A record of the hearing shall be kept, including written\nstatements submitted. Copies of such record shall be available to the\npublic for examination without cost during normal business hours at the\noffice of alcoholism and substance abuse's central office. Copies shall\nbe reproduced upon written request and payment of the cost thereof.\nFurther adjourned hearings may be scheduled.\n  (f) Nothing in this section shall limit the application of provisions\nof article twenty-eight of the public health law.\n