NY Ment Hygiene L § 16.03 (2021)
2021 New York Laws MHY - Mental Hygiene Title C - Developmental Disabilties Act Article 16 - Regulation and Quality of Services 16.03 - Operating Certificate Required.

§ 16.03 Operating certificate required.  (a)  No  provider  of  services  shall  engage in any of the following activities without an operating certificate issued by  the  commissioner pursuant to this article:  (1)  Operation of a residential facility for the care and treatment of persons with developmental disabilities including a family care home.  (2) Operation of any distinct part of  a  general  hospital  or  other facility  possessing  an  operating  certificate,  pursuant  to  article twenty-eight of the public health law, operated for the primary  purpose of  providing  residential  or non-residential services for persons with developmental disabilities.  (3) Operation of a facility established  or  maintained  by  a  public agency,   board,  or  commission,  or  by  a  corporation  or  voluntary association for the rendition of out-patient or non-residential services for persons with developmental  disabilities;  provided,  however,  that such operation shall not be deemed to include (i) professional practice, within  the  scope of a professional license or certificate issued by an agency of the state, by an individual practitioner or by  a  partnership of  such  individuals  or  by  a  professional  service corporation duly incorporated pursuant to the business corporation law or by a university faculty  practice  corporation  duly  incorporated   pursuant   to   the not-for-profit  corporation  law  or (ii) non-residential services which are licensed, supervised, or operated by another agency of the state and non-residential services which are chartered or issued a certificate  of incorporation pursuant to the education law or (iii) pastoral counseling by  a  clergyman  or  minister,  including those defined as clergyman or minister by section two of the religious corporations law.  (4) The provision of home and community based services approved  under a  waiver  program authorized pursuant to section eleven hundred fifteen of the federal  social  security  act  or  subdivision  (c)  of  section nineteen  hundred  fifteen  of  the  federal  social  security  act  and subdivisions seven and seven-a of section three hundred sixty-six of the social services law,  provided  that  an  operating  certificate  issued pursuant  to  this  paragraph shall only authorize services in a home or community setting.  (5) The provision of  services  approved  in  a  medicaid  state  plan authorized  pursuant  to  section  nineteen  hundred  two of the federal social security act, including optional state plan  services  authorized pursuant  to  subdivision (g) of section nineteen hundred fifteen of the federal social security act,  and  designated  by  the  commissioner  of health, in consultation with the commissioner, as being for persons with developmental disabilities.  (b) The commissioner shall enter into a cooperative agreement with the commissioner   of   education  with  respect  to  all  issues  regarding certification  under  this  article  of  providers  of   non-residential services  which  are  chartered or issued a certificate of incorporation pursuant to the education law.  (c) The commissioner shall enter into a cooperative agreement with the commissioner  of  health  with   respect   to   all   issues   regarding certification  under this article of providers of services possessing an operating certificate pursuant to article  twenty-eight  of  the  public health law.  (d)  The operation of a facility or provision of services for which an operating certificate is required pursuant to this article shall  be  in accordance   with  the  terms  of  the  operating  certificate  and  the regulations of the commissioner.  (e) Any provider of services who knowingly fails to  comply  with  the provisions of this section shall be guilty of a misdemeanor.  (f)  Any  provider  of  services  that  holds an operating certificate pursuant to paragraph four of subdivision (a) of this section, shall  be authorized  to  employ  or  contract  with  persons licensed to practice nursing pursuant to article one hundred  thirty-nine  of  the  education law;  employ  or  contract with exempt individuals authorized to perform tasks pursuant to subparagraph (v) of paragraph a of subdivision one  of section  sixty-nine hundred eight of the education law; or contract with entities legally authorized  to  employ  persons  licensed  to  practice nursing pursuant to article one hundred thirty-nine of the education law or   exempt   individuals   authorized  to  perform  tasks  pursuant  to subparagraph (v) of paragraph a of subdivision one of section sixty-nine hundred  eight  of  the  education  law;  provided  that   such   exempt individuals  shall  only  be authorized to provide those tasks delegated pursuant to subparagraph (v)  of  paragraph  a  of  subdivision  one  of section sixty-nine hundred eight of the education law.  (g)  No  provision of this article or any other provision of law shall be  construed  to  require  a  provider  licensed  pursuant  to  article twenty-eight  of  the public health law or certified pursuant to article thirty-one  or  thirty-two  of  this  chapter  to  obtain  an  operating certificate  from  the office for people with developmental disabilities if such provider has been authorized to provide integrated  services  in accordance with regulations issued by the commissioner of the office for people   with  developmental  disabilities,  in  consultation  with  the commissioner of the department of health, the commissioner of the office of mental health and the commissioner of the office  of  alcoholism  and substance  abuse  services,  including  regulations  issued  pursuant to subdivision seven of section three hundred sixty-five-l  of  the  social services  law or part L of chapter fifty-six of the laws of two thousand twelve.