N.Y. Mental Hyg. Law § 31.04

§ 31.04 Regulatory powers of the commissioner.\n (a) The commissioner shall have the power to adopt regulations to\neffectuate the provisions and purposes of this article, including, but\nnot limited to, the following:\n 1. establishing classes of operating certificates based upon such\nfactors as physical plant, program, and staff.\n 2. setting standards of quality and adequacy of facilities, equipment,\npersonnel, services, records, and programs for the rendition of services\nfor the mentally disabled pursuant to an operating certificate.\n 3. specifying a definite period for which the operating certificate\nwill be in effect for each class.\n * 4. establishing procedures for the issuance, amendment, and renewal\nof operating certificates, including temporary operating certificates,\nand for the suspension or revocation of operating certificates. Such\nprocedures shall specify that no application for the issuance or renewal\nof an operating certificate for a hospital, which is operated as part of\na hospital as defined in article twenty-eight of the public health law,\nshall be effective until such hospital is granted approval to admit\npatients in emergencies for immediate observation, care and treatment in\naccordance with section 9.39 or 9.40 of this chapter, provided that the\ncommissioner shall waive this requirement for two year periods upon his\ndetermination that (i) there is no need for additional beds for\nemergency psychiatric admissions in the local geographic area, (ii) the\nhospital lacks the physical capacity to reasonably accommodate such\nemergency admissions without extensive structural changes, (iii) the\nhospital does not and reasonably could not provide the scope of services\nnecessary to assure adequate and appropriate psychiatric care and\ntreatment for patients in emergency situations, or (iv) the hospital has\nagreed to accept referrals of involuntary psychiatric patients under an\nemergency admissions system which has been approved by the commissioner.\nProvided, however, nothing in this paragraph shall be interpreted to\nrequire a hospital without an onsite emergency room to accept patients\nin need of emergency observation, care and treatment.\n * NB Effective until July 1, 2027\n * 4. establishing procedures for the issuance, amendment, and renewal\nof operating certificates, including temporary operating certificates,\nand for the suspension or revocation of operating certificates. Such\nprocedures shall specify that no application for the issuance or renewal\nof an operating certificate for a hospital, which is operated as part of\na hospital as defined in article twenty-eight of the public health law,\nshall be effective until such hospital is granted approval to admit\npatients in emergencies for immediate observation, care and treatment in\naccordance with section 9.39 of this chapter, provided that the\ncommissioner shall waive this requirement for two year periods upon his\ndetermination that (i) there is no need for additional beds for\nemergency psychiatric admissions in the local geographic area, (ii) the\nhospital lacks the physical capacity to reasonably accommodate such\nemergency admissions without extensive structural changes, (iii) the\nhospital does not and reasonably could not provide the scope of services\nnecessary to assure adequate and appropriate psychiatric care and\ntreatment for patients in emergency situations, or (iv) the hospital has\nagreed to accept referrals of involuntary psychiatric patients under an\nemergency admissions system which has been approved by the commissioner.\nProvided, however, nothing in this paragraph shall be interpreted to\nrequire a hospital without an onsite emergency room to accept patients\nin need of emergency observation, care and treatment.\n * NB Effective July 1, 2027\n 5. setting for the operation of certified family care homes standards\ngoverning adequacy of the building and equipment, fire protection,\nsafety, sanitation, food service, programs for the rendition of service,\nrecreation and religious participation, medical services, personnel,\ninsurance, record keeping procedures and statistical records as well as\nappropriate standards governing or precluding ownership of more than one\nsuch home.\n 6. establishing criteria for use by staff of department facilities,\nsocial services officials and directors of local governmental units for\ndetermining the appropriateness of referring patients to family care\nhomes, other community residences and residential care centers for\nadults.\n 7. establishing criteria for determining the public need for family\ncare homes, other community residences and residential care centers for\nadults in each geographical area of the state.\n 8. establishing a schedule of fees for the purpose of processing\napplications for the issuance of operating certificates. All fees\npursuant to this section shall be payable to the office for deposit into\nthe general fund.\n * (b) The commissioner shall promulgate regulations establishing\ncriteria for the operation of certified comprehensive psychiatric\nemergency programs including but not limited to criteria governing the\nstaffing, staff qualifications, equipment, record keeping, safety\nrequirements, required services, discharge planning, appropriate\nlinkages to alcohol and substance abuse programs, space requirements,\nquality and adequacy of such programs, and the required posting of a\nnotice of patient rights. In addition, the regulations shall require\nsuch programs to include appropriate facilities to permit persons to\nrest comfortably while awaiting observation, care or treatment.\n * NB Repealed July 1, 2027\n * (c) Prior to the adoption, amendment, suspension or repeal of any\nregulation under this article, the commissioner shall give notice and\noffer any person or other agency an opportunity to present data, views,\nor arguments, as follows:\n 1. The commissioner shall, at least sixty days prior to the adoption,\namendment, suspension or repeal of a regulation, notify the mental\nhealth services council for its advice, in accordance with subdivision\n(i) of section 7.05 of this chapter.\n 2. The commissioner shall, at least twenty-one days prior to the\nadoption, amendment, suspension or repeal of a regulation, (i) publish\nnotice of its proposed action in the state bulletin and, when\nappropriate in the judgment of the commissioner, in such newspaper or\nnewspapers of general circulation or, in such professional publications\nas the commissioner may select, and (ii) notify any person or agency\nfiling written request, such request to be renewed yearly in December,\nfor notice of proposed action which may affect that person or agency,\nnotification being by mail or otherwise in writing to the last address\nspecified by the person or agency. The commissioner may charge for such\nnotice a fee, which shall consist of the cost of preparation, handling,\nand postage for the notice.\n 3. The notice shall (i) refer to the statutory authority under which\nthe action is proposed, (ii) give the time and place of any public\nhearing, or state the manner in which data, views, or arguments may be\nsubmitted to the commissioner by any person or state agency, whether\norally or in writing, (iii) either state the express terms or indicate\nwhere the express terms may be obtained and describe the substance of\nthe proposed regulation, amendment, suspension or repeal, or state the\nsubjects and issues involved, and (iv) include any additional matter\nrequired by any statute.\n 4. Irrespective of the requirements of any other statute, if the\ncommissioner finds that it is necessary for the preservation of the\npublic health, safety, or general welfare to dispense with the\nrequirements of notice and opportunity to present views on the proposed\nregulation, amendment, suspension, or repeal under the provisions of\nthis subdivision, the commissioner may dispense with such requirements,\nor any part thereof, and adopt the regulation, amendment, suspension, or\nrepeal as an emergency measure. The commissioner's finding and a brief\nstatement of the reasons for his finding shall accompany the emergency\nmeasure. Such emergency measure shall not remain in effect for longer\nthan sixty days unless within that time the commissioner complies with\nparagraphs (1) and (2) of this subdivision, and takes final action\nrelating to the emergency measure.\n 5. Upon the adoption, amendment, suspension, or repeal of a\nregulation, the commissioner shall publish notice of the action taken in\nthe state bulletin. The notice shall refer to the statutory authority\nunder which the action was taken and shall include either the express\nterms or describe the substance of such action and where the express\nterms may be obtained.\n 6. No regulation hereafter adopted is valid unless adopted in\nsubstantial compliance with this subdivision, provided, however, that\nthe inadvertent failure to mail notice to any person or agency as\nprovided in this subdivision shall not invalidate any regulation adopted\nhereunder. A proceeding to contest any regulation on the ground of\nnon-compliance with the procedural requirements of this subdivision must\nbe commenced within four months from the effective date of the\nregulation.\n 7. The validity or applicability of any regulation may be determined\nupon petition presented under article four of the civil practice law and\nrules or in an action for a declaratory judgment when it appears that\nthe regulation or its threatened application interferes with or impairs,\nor threatens to interfere with or impair, the legal rights, property or\nprivileges of the petitioner. The department shall be made a party to\nthe proceedings. Such a special proceeding may not be maintained or a\ndeclaratory judgment rendered unless the petitioner has first requested\nthe commissioner to pass upon the validity or applicability of the\nregulation in question. The court shall declare the regulation invalid\nor inapplicable if it finds that it violates constitutional provisions\nor exceeds the statutory authority of the department. Nothing in this\nsection shall be construed to prohibit the determination of the validity\nor applicability of the regulation in any other action or proceeding in\nwhich its invalidity or inapplicability is asserted, and nothing in this\nsection shall be construed to limit any rights which may exist under\narticle seventy-eight of the civil practice law and rules.\n * NB Effective until July 1, 2027--on which date this subdivision (c)\nbecomes subdivision (b)\n (d) The commissioner of mental health shall be authorized to\npromulgate regulations which impose reasonable restrictions on the\nmarketing and advertising practices by or on behalf of any facility,\nwhich are targeted toward the provision of services to persons aged\ntwenty-one years or younger. These reasonable restrictions may include,\nbut not be limited to, prohibitions against false, deceptive or\nmisleading advertising. However, the regulations may not restrict\nadvertising which solely provides factual information that describes the\nproduct or services offered or information regarding the cost of\nproducts or services, nor may the regulations require prior submission\nor approval of advertising by the office of mental health. The\ncommissioner shall be authorized to inquire into the marketing practices\nof any applicant or holder of an operating certificate.\n (e) The commissioner shall promulgate rules and regulations\nprohibiting the co-mingling of children and adolescent patients with\nadult patients, in hospitals licensed by the office. Such rules and\nregulations shall provide that children and adolescents shall not be\nco-mingled with adults in residential areas of such hospitals, nor shall\nchildren and adolescents receive services in groups which include\nadults. In extraordinary circumstances, such co-mingling may be\npermitted upon written approval of the office, considering the clinical\nneeds of patients, as well as applicable health and safety concerns. The\nprovisions of this subdivision shall not apply to residential treatment\nfacilities for children and youth.\n