N.Y. Mental Hygiene Law § 32.29: Approval of new construction

§ 32.29 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.

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 that require the submission of an application for an operating

certificate or amendment to an operating certificate or certificate of

approval previously issued by the office of alcoholism and substance

abuse services; or which is likely to have an impact on state aid.

(b) The construction of a facility shall require the prior approval of

such commissioner if the provider of services seeking to engage in such

construction receives funding from the office of alcoholism and

substance abuse services pursuant to this chapter and/or seeks a funding

source for such construction project other than from the mental health

services facilities improvement program, or its successor agency,

directly or indirectly through a closely related entity.

1. An application for such construction together with such other forms

and information as shall be prescribed, shall be submitted to the office

of alcoholism and substance abuse services.

2. 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. The local governmental

unit shall report its recommendations on the proposed construction

within a reasonable time.

3. Upon receipt of the recommendations of the local governmental unit,

or upon the lapse of a reasonable time for comment by the local

governmental unit, the commissioner shall submit the application for

facilities other than community residences along with the

recommendations of the local governmental unit, if any, to the advisory

council on alcoholism and substance abuse services for its review and

recommendation. The commissioner shall not act upon an application for

construction of a facility other than a community residence without

having first given the advisory council on alcoholism and substance

abuse services a reasonable opportunity to make its recommendation on

the application, provided however, that the commissioner may act upon an

application for construction by an applicant possessing a valid

operating certificate when the applicant qualifies for review without

the recommendation of the council pursuant to regulations adopted by the

commissioner with the advice of the council in accordance with the

procedures noted in section 19.05 of this chapter.

(c) 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 and shall

not grant approval of an application for construction unless, based on

the information and advice received and his or her own review he or she

is satisfied as to (i) the public need for the facility or the services

at the time and place and under the circumstances proposed, taking into

consideration local, regional, and statewide need; (ii) the absence of

availability and feasibility for development of facilities or services

which may serve as alternatives or substitutes for the whole or any part

of the proposed construction; (iii) the overall financial condition of

the applicant, through review of audited financial statements, taking

into consideration the adequacy of financial resources and sources of

future revenue; (iv) the absence of more efficient architectural

solutions to construction proposed; and (v) the sufficiency of such

other matters as he or she may deem pertinent in the public interest.

(d) If the commissioner proposes to disapprove an application for

construction of a facility, he or she shall afford the applicant an

opportunity to be heard in accordance with subdivision (e) of this

section. The commissioner shall not take any action contrary to the

recommendation of the advisory council on alcoholism and substance abuse

services, unless he or she first appears before the council and explains

his or her reasons therefor. The commissioner shall not take any action

contrary to the advice of the local governmental unit for facilities

other than community residences until he or she affords an opportunity

to the local governmental unit to request a public hearing and if so

requested, a public hearing shall be held in accordance with subdivision

(e) of this section. The commissioner, on his or her own motion, may

hold a hearing on an application for construction of a facility.

(e) At the public hearing the commissioner shall outline all pertinent

matters regarding the application. Thereafter, any person in attendance

shall be given a reasonable opportunity to present an oral or written

statement and to submit other documents concerning the application for

construction. A record of the hearing shall be kept, including written

statements submitted. Copies of such record shall be available to the

public for examination without cost during normal business hours at the

office of alcoholism and substance abuse's central office. Copies shall

be reproduced upon written request and payment of the cost thereof.

Further adjourned hearings may be scheduled.

(f) Nothing in this section shall limit the application of provisions

of article twenty-eight of the public health law.