2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 31 - Regulation and Quality Control of Services for the Mentally Disabled › 31.23 - Approval of New Construction.

§ 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.