N.Y. Mental Hygiene Law § 16.09: Approval of new construction

§ 16.09 Approval of new construction.

(a) As used or referred to in this section, unless a different meaning

clearly appears from the context:

(1) "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 but

shall not include the provision of services, as defined in paragraph

four of subdivision (a) of section 16.03 of this article, outside of a

facility.

(2) "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) The construction of a facility, whether public or private,

incorporated or not incorporated, shall require the prior approval of

the commissioner. An application for such construction shall be filed

with the office, together with such other forms and information as shall

be prescribed by, or acceptable to, the office. Thereafter, the office

shall forward for comment a copy of the application and 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 community residences, to the concerned

health systems agency. 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 and (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 community residences, 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. The commissioner,

on his own motion, may hold a hearing on an application for construction

of a facility.

(c) In determining whether there is a public need for any services or

facilities, for facilities other than community residences, as required

by this article, the commissioner shall consider the advice of the state

health planning and development agency designated pursuant to the

provisions of the national health planning and resources development act

of nineteen hundred seventy-four and any amendments thereto. The

commissioner shall not take any action contrary to the advice of the

health systems agency for facilities other than community residences

until he affords an opportunity to the agency to request a public

hearing and, if so requested, a public hearing shall be held.