N.Y. Mental Hygiene Law § 31.04: Regulatory powers of the commissioner

§ 31.04 Regulatory powers of the commissioner.

(a) The commissioner shall have the power to adopt regulations to

effectuate the provisions and purposes of this article, including, but

not limited to, the following:

1. establishing classes of operating certificates based upon such

factors as physical plant, program, and staff.

2. setting standards of quality and adequacy of facilities, equipment,

personnel, services, records, and programs for the rendition of services

for the mentally disabled pursuant to an operating certificate.

3. specifying a definite period for which the operating certificate

will be in effect for each class.

* 4. establishing procedures for the issuance, amendment, and renewal

of operating certificates, including temporary operating certificates,

and for the suspension or revocation of operating certificates. Such

procedures shall specify that no application for the issuance or renewal

of an operating certificate for a hospital, which is operated as part of

a hospital as defined in article twenty-eight of the public health law,

shall be effective until such hospital is granted approval to admit

patients in emergencies for immediate observation, care and treatment in

accordance with section 9.39 or 9.40 of this chapter, provided that the

commissioner shall waive this requirement for two year periods upon his

determination that (i) there is no need for additional beds for

emergency psychiatric admissions in the local geographic area, (ii) the

hospital lacks the physical capacity to reasonably accommodate such

emergency admissions without extensive structural changes, (iii) the

hospital does not and reasonably could not provide the scope of services

necessary to assure adequate and appropriate psychiatric care and

treatment for patients in emergency situations, or (iv) the hospital has

agreed to accept referrals of involuntary psychiatric patients under an

emergency admissions system which has been approved by the commissioner.

Provided, however, nothing in this paragraph shall be interpreted to

require a hospital without an onsite emergency room to accept patients

in need of emergency observation, care and treatment.

* NB Effective until July 1, 2027

* 4. establishing procedures for the issuance, amendment, and renewal

of operating certificates, including temporary operating certificates,

and for the suspension or revocation of operating certificates. Such

procedures shall specify that no application for the issuance or renewal

of an operating certificate for a hospital, which is operated as part of

a hospital as defined in article twenty-eight of the public health law,

shall be effective until such hospital is granted approval to admit

patients in emergencies for immediate observation, care and treatment in

accordance with section 9.39 of this chapter, provided that the

commissioner shall waive this requirement for two year periods upon his

determination that (i) there is no need for additional beds for

emergency psychiatric admissions in the local geographic area, (ii) the

hospital lacks the physical capacity to reasonably accommodate such

emergency admissions without extensive structural changes, (iii) the

hospital does not and reasonably could not provide the scope of services

necessary to assure adequate and appropriate psychiatric care and

treatment for patients in emergency situations, or (iv) the hospital has

agreed to accept referrals of involuntary psychiatric patients under an

emergency admissions system which has been approved by the commissioner.

Provided, however, nothing in this paragraph shall be interpreted to

require a hospital without an onsite emergency room to accept patients

in need of emergency observation, care and treatment.

* NB Effective July 1, 2027

5. setting for the operation of certified family care homes standards

governing adequacy of the building and equipment, fire protection,

safety, sanitation, food service, programs for the rendition of service,

recreation and religious participation, medical services, personnel,

insurance, record keeping procedures and statistical records as well as

appropriate standards governing or precluding ownership of more than one

such home.

6. establishing criteria for use by staff of department facilities,

social services officials and directors of local governmental units for

determining the appropriateness of referring patients to family care

homes, other community residences and residential care centers for

adults.

7. establishing criteria for determining the public need for family

care homes, other community residences and residential care centers for

adults in each geographical area of the state.

8. establishing a schedule of fees for the purpose of processing

applications for the issuance of operating certificates. All fees

pursuant to this section shall be payable to the office for deposit into

the general fund.

* (b) The commissioner shall promulgate regulations establishing

criteria for the operation of certified comprehensive psychiatric

emergency programs including but not limited to criteria governing the

staffing, staff qualifications, equipment, record keeping, safety

requirements, required services, discharge planning, appropriate

linkages to alcohol and substance abuse programs, space requirements,

quality and adequacy of such programs, and the required posting of a

notice of patient rights. In addition, the regulations shall require

such programs to include appropriate facilities to permit persons to

rest comfortably while awaiting observation, care or treatment.

* NB Repealed July 1, 2027

* (c) Prior to the adoption, amendment, suspension or repeal of any

regulation under this article, the commissioner shall give notice and

offer any person or other agency an opportunity to present data, views,

or arguments, as follows:

1. The commissioner shall, at least sixty days prior to the adoption,

amendment, suspension or repeal of a regulation, notify the mental

health services council for its advice, in accordance with subdivision

(i) of section 7.05 of this chapter.

2. The commissioner shall, at least twenty-one days prior to the

adoption, amendment, suspension or repeal of a regulation, (i) publish

notice of its proposed action in the state bulletin and, when

appropriate in the judgment of the commissioner, in such newspaper or

newspapers of general circulation or, in such professional publications

as the commissioner may select, and (ii) notify any person or agency

filing written request, such request to be renewed yearly in December,

for notice of proposed action which may affect that person or agency,

notification being by mail or otherwise in writing to the last address

specified by the person or agency. The commissioner may charge for such

notice a fee, which shall consist of the cost of preparation, handling,

and postage for the notice.

3. The notice shall (i) refer to the statutory authority under which

the action is proposed, (ii) give the time and place of any public

hearing, or state the manner in which data, views, or arguments may be

submitted to the commissioner by any person or state agency, whether

orally or in writing, (iii) either state the express terms or indicate

where the express terms may be obtained and describe the substance of

the proposed regulation, amendment, suspension or repeal, or state the

subjects and issues involved, and (iv) include any additional matter

required by any statute.

4. Irrespective of the requirements of any other statute, if the

commissioner finds that it is necessary for the preservation of the

public health, safety, or general welfare to dispense with the

requirements of notice and opportunity to present views on the proposed

regulation, amendment, suspension, or repeal under the provisions of

this subdivision, the commissioner may dispense with such requirements,

or any part thereof, and adopt the regulation, amendment, suspension, or

repeal as an emergency measure. The commissioner's finding and a brief

statement of the reasons for his finding shall accompany the emergency

measure. Such emergency measure shall not remain in effect for longer

than sixty days unless within that time the commissioner complies with

paragraphs (1) and (2) of this subdivision, and takes final action

relating to the emergency measure.

5. Upon the adoption, amendment, suspension, or repeal of a

regulation, the commissioner shall publish notice of the action taken in

the state bulletin. The notice shall refer to the statutory authority

under which the action was taken and shall include either the express

terms or describe the substance of such action and where the express

terms may be obtained.

6. No regulation hereafter adopted is valid unless adopted in

substantial compliance with this subdivision, provided, however, that

the inadvertent failure to mail notice to any person or agency as

provided in this subdivision shall not invalidate any regulation adopted

hereunder. A proceeding to contest any regulation on the ground of

non-compliance with the procedural requirements of this subdivision must

be commenced within four months from the effective date of the

regulation.

7. The validity or applicability of any regulation may be determined

upon petition presented under article four of the civil practice law and

rules or in an action for a declaratory judgment when it appears that

the regulation or its threatened application interferes with or impairs,

or threatens to interfere with or impair, the legal rights, property or

privileges of the petitioner. The department shall be made a party to

the proceedings. Such a special proceeding may not be maintained or a

declaratory judgment rendered unless the petitioner has first requested

the commissioner to pass upon the validity or applicability of the

regulation in question. The court shall declare the regulation invalid

or inapplicable if it finds that it violates constitutional provisions

or exceeds the statutory authority of the department. Nothing in this

section shall be construed to prohibit the determination of the validity

or applicability of the regulation in any other action or proceeding in

which its invalidity or inapplicability is asserted, and nothing in this

section shall be construed to limit any rights which may exist under

article seventy-eight of the civil practice law and rules.

* NB Effective until July 1, 2027--on which date this subdivision (c)

becomes subdivision (b)

(d) The commissioner of mental health shall be authorized to

promulgate regulations which impose reasonable restrictions on the

marketing and advertising practices by or on behalf of any facility,

which are targeted toward the provision of services to persons aged

twenty-one years or younger. These reasonable restrictions may include,

but not be limited to, prohibitions against false, deceptive or

misleading advertising. However, the regulations may not restrict

advertising which solely provides factual information that describes the

product or services offered or information regarding the cost of

products or services, nor may the regulations require prior submission

or approval of advertising by the office of mental health. The

commissioner shall be authorized to inquire into the marketing practices

of any applicant or holder of an operating certificate.

(e) The commissioner shall promulgate rules and regulations

prohibiting the co-mingling of children and adolescent patients with

adult patients, in hospitals licensed by the office. Such rules and

regulations shall provide that children and adolescents shall not be

co-mingled with adults in residential areas of such hospitals, nor shall

children and adolescents receive services in groups which include

adults. In extraordinary circumstances, such co-mingling may be

permitted upon written approval of the office, considering the clinical

needs of patients, as well as applicable health and safety concerns. The

provisions of this subdivision shall not apply to residential treatment

facilities for children and youth.