N.Y. Mental Hygiene Law § 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.