NY Ment Hygiene L § 31.04 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 31 - Regulation and Quality Control of Services for the Mentally Disabled 31.04 - Regulatory Powers of the Commissioner.

§ 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.