Current through Register Vol. 46, No. 39, September 25, 2024
(a) This Part is
intended to establish an all-inclusive set of categories, named classes, to
which all providers of services to the mentally disabled subject to the
requirement to obtain an operating certificate from the Commissioner of Mental
Hygiene will be assigned, for purposes of determining compliance with the most
appropriate standards of operation and construction pursuant to the issuing of
an operating certificate.
(1) A provider of
services which has been issued an operating certificate to engage in the
operation of any facility may designate itself or that facility to the public
by any term it chooses, except that no such designation shall denote any class
herein established which is not specified in the operating certificate of that
facility.
(2) No entity which is
ineligible to be issued an operating certificate in accordance with the Mental
Hygiene Law and this Title shall designate itself to the public by terms which
denote any class herein established or which express or imply any approval by
the department.
(b) The
statutory requirement that an operating certificate be obtained by certain
providers of services to the mentally disabled is applicable on the basis of
three factors: characteristics of the persons served, characteristics of the
services provided, and the auspices of the provider of services.
(1) The primary basis for the requirement of
an operating certificate is that the subject activities are conducted primarily
or exclusively for persons who are mentally disabled, as that term is defined
in the Mental Hygiene Law. Accordingly, those organized activities of life in
which mentally disabled persons engage on the same basis as others not so
handicapped are not intended to be included. Also, neither those services to
persons whose disabilities are primarily of a nature other than mental, nor
those services to persons whose mental problems are not so disabling as to
conform to the definitions of mental illness, mental retardation and alcoholism
in the Mental Hygiene Law, are intended to be included.
(2) The secondary basis for the requirement
of an operating certificate is that the subject activities are sufficiently
specialized, technical and potent as to warrant their regulation in the
interest of their safe and effective use for the benefit of persons not
necessarily capable of assuring this for themselves. The issuance of an
operating certificate is intended to signify that a provider has met minimum
standards for conditions conducive to safe and effective operation and to
establish the accountability of the provider for operation in accordance with
those standards. Accordingly, any activities however well-intended which
require no expertise and are free of risk are not intended to be
included.
(3) The tertiary basis
for the requirement of an operating certificate is that the subject activities
are not subject to comparable regulation, in accordance with statutes other
than the Mental Hygiene Law, as administered by agencies other than the
Department of Mental Hygiene. Accordingly, the private practice of a
profession, whether on an individual, partnership or corporate basis, whereby
outpatient or nonresidential services to the mentally disabled are provided, is
not intended to be included if that practice is authorized in accordance with
appropriate professional licensure or certification and registration under the
Education Law. Also, institutions of learning chartered or established in
accordance with the Education Law, whose students provide services to the
mentally disabled incidental to a curriculum of education and training in
professional disciplines, are not intended to be included.
(c) Providers of services to the mentally
disabled which are issued an operating certificate by the Commissioner of
Mental Hygiene nevertheless remain subject to all applicable Federal, State and
local laws, regulations and ordinances. In those matters which are subject to
more than one jurisdiction or regulatory requirement, the most strict
provisions shall apply. In the event that any other legal requirements are
contradictory to those in the Mental Hygiene Law or this Title, it is incumbent
upon the certificate holder to bring this information to the attention of the
department.
