Current through Register Vol. 46, No. 39, September 25, 2024
Mental Hygiene Law, § 11.13, subd. (e).
(a)
Introduction.
Article 11 of the Mental Hygiene Law makes clear that the
policy of the State is that the local governmental unit shall be the operative
agency for insuring that local services for the mentally disabled are provided.
The units are charged with this responsibility for planning, supervising and
coordinating such local services. Local programs carried out pursuant to the
law and to this Part which have been approved by the department are eligible
for State aid in accordance with the formulas set forth in the law. Voluntary
organizations offering community services pursuant to contract with local
governmental units have been recognized as an extremely important component of
the community services program. In approving the plan for each community, as
submitted by its local governmental unit, the department makes every effort to
see that the local plan is well balanced and makes full use of community
resources, including the use of voluntary organizations which have the
expertise and the resources to participate in community programs. Section
11.13, subdivision (e) of the Mental Hygiene Law provides that a non-profit
agency which has been refused a contract by a local governmental unit may
appeal to the commissioner. If the commissioner upholds the appeal, the
department may enter into a direct contract with the agency. This Part sets
forth the criteria and the procedures for appeal and decision under that
section. The policy of the department remains one of encouraging local
governmental units to make full use of voluntary organizations where
appropriate for the development of community programs, and to resolve
disagreement at the local level without the need for an appeal pursuant to this
section.
(b)
Right to
appeal.
(1) A corporation, incorporated
or existing, pursuant to the Not-for-Profit Corporation Law, which has the
power to provide community mental health, mental retardation, or alcoholism
services may appeal to the commissioner within 30 days from the date that such
appellant has been notified of the refusal by the local governmental unit to
enter into a contract with such appellant or within 30 days after the unit's
failure to include such a contract in its plan or budget.
(2) An appeal may be had only where the
application for a contract to the local governmental unit by the appellant does
not involve the direct expenditure of local tax money.
(c)
Written appeal and reply.
(1) An appeal to the commissioner pursuant to
this section, must be in writing with a copy to the local governmental unit and
to the appropriate regional office of the department. The written appeal must
set forth facts showing the following:
(i) The
details of the program which the appellant has offered in its proposed
contract.
(ii) The need for the
program in the community.
(iii) A
showing that the appellant has the capacity to furnish the services. Specific
detail must be shown that the appellant would be able to provide the place, the
personnel and the organizational structure to effectuate the proposed program
and that it has such licenses or approvals as are needed to operate such a
program. The appellant must also show that it has the financial ability to
provide sufficient funds to match State aid.
(iv) The appellant must show that it has made
a concrete offer in writing with specific proposals to the local government
within the time possible for inclusion of the item in the local plan and
budget.
(v) A copy of the decision
of local government to refuse to enter into the agreement or sufficient facts
to show that there has been a definite decision to that effect must be
submitted.
(2) The
department will notify the local governmental unit of the appeal and will give
the unit 30 days to make its reply to the appeal. In its reply, the unit shall
set forth facts showing whether there was a substantial basis for its decision.
The unit shall serve a copy of its reply, personally or by mail, upon the
appellant.
(d)
Conciliation.
Every effort shall be made by the department to conciliate
the appellant and the unit. Informal sessions may be arranged for a discussion
of the issues and an attempt to resolve the appeal without further formal
procedure.
(e)
Disposition without hearing.
If the appellant has failed to set forth in its written
appeal a substantial basis for consideration of the matter by the commissioner,
or if, on the basis of the facts appearing on the papers presented to the
commissioner, there appears no substantial basis for appeal, the commissioner
shall dismiss the appeal.
(f)
Hearing.
(1) If a substantial basis for appeal has
been presented by the appellant, and the efforts of the department at
conciliation have failed, a hearing shall be held before the commissioner or
someone designated by him at a time or times fixed by the commissioner. Written
notice of the hearing shall be given to the appellant, the local governmental
unit and such other persons as the commissioner may deem advisable.
(2) The hearing shall not be adjudicatory in
nature and the rules applying to quasi-judicial hearings shall not apply. The
appellant, the representatives of the local governmental unit, appropriate
staff members of the department and other interested individuals may present
their views to the commissioner on the merits of the appeal.
(3) Whenever possible, the commissioner shall
designate a place in the county seat of the county from which the appeal has
arisen for the conduct of the hearing.
(g)
Decision.
(1) Within 20 days after the date that the
hearing has closed, a decision shall be made by the commissioner on whether the
appeal is meritorious.
(2) The
commissioner shall notify the local governmental unit and the appellant of his
decision. If the decision holds that the appeal is meritorious, the notice
shall require that the local governmental unit give further consideration to
the appellant's request and notify the commissioner within 20 days as to
whether or not the unit has reconsidered its refusal.
(3) If a local governmental unit notifies the
commissioner that it is willing to grant the contract requested by the
appellant, the commissioner shall close the matter.
(4) If the local governmental unit notifies
the commissioner that it is not willing to reconsider its refusal or if such
unit fails to reply within the time specified, the commissioner may then decide
whether to grant a contract directly with the appellant. A decision to grant a
contract shall be within the sole discretion of the commissioner and shall be
based on his judgment on the desirability of the program and the availability
of funds for this purpose. In every case where the appeal has been found
meritorious, regardless of whether or not a direct contract is granted, the
commissioner shall direct a review of the adequacy of the local plan for
community services for the mentally disabled.
(5) Direct contracts with agencies shall only
be made under the following conditions:
(i)
Contracts may only be made within existing appropriations.
(ii) The department shall not pay more than
the percentage of the net cost of the services that the appellant would have
received if the contract had been granted by the local governmental
unit.
(iii) The term of any
contract shall be limited to one year.
(iv) Further contracts will only be made
directly with the appellant upon a showing by the appellant that it has
submitted its proposal for future fiscal years to the local governmental unit
and that such unit has continued to refuse to enter into a contract.
(v) Such other conditions as the commissioner
may direct to insure that the service is adequate and suitable and
appropriately related to other elements of the local plan.
