31.02 - Operating certificate required.
§ 31.02 Operating certificate required. (a) Except as provided in subdivision (b) of this section no provider of services shall engage in any of the following activities without an operating certificate issued by the commissioner pursuant to this article: 1. operation of a residential facility or institution, including a community residence, for the care, custody, or treatment of the mentally disabled; provided, however, that giving domestic care and comfort to a person in the home shall not constitute such an operation. 2. operation of any part of a general hospital for the purpose of providing residential or non-residential services for the mentally disabled. 3. operation of a facility established or maintained by a public agency, board, or commission, or by a corporation for the rendition of out-patient or non-residential services for the mentally disabled; provided, however, that such operation shall not be deemed to include (i) professional practice, within the scope of a professional license or certificate issued by an agency of the state, by an individual practitioner or by a partnership of such individuals or by a professional service corporation duly incorporated pursuant to the business corporation law or by a university faculty practice corporation duly incorporated pursuant to the not-for-profit corporation law or (ii) non-residential services which are licensed, supervised, or operated by another agency of the state and nonresidential services which are chartered or issued a certificate of incorporation pursuant to the education law or (iii) pastoral counseling by a clergyman or minister, including those defined as clergyman or minister by section two of the religious corporations law. 4. operation of a residential treatment facility for children and youth. 5. operation of a residential care center for adults. * 6. operation of a comprehensive psychiatric emergency program. * NB Repealed July 1, 2012 (b) A provider of services operating a community residence on April first, nineteen hundred seventy-six, shall be issued an operating certificate by the commissioner without requiring proof that there is a public need for such residence, providing application for such operating certificate to the department in accordance with this article is submitted prior to September first, nineteen hundred seventy-six. Pending the determination of any such application the continuance of such operation shall be lawful. An application pursuant to this section shall be deemed filed with the department upon being mailed to the department by registered or certified mail. (c) The operation of a facility for which an operating certificate is required shall be in accordance with the terms of the operating certificate and the regulations of the commissioner. (d) Any provider of services who knowingly fails to comply with the provisions of this section or of section 31.03 of this article shall be guilty of a misdemeanor. (e) If the commissioner has reason to believe that there is a provider of services for the mentally disabled who does not possess a required current valid operating certificate, he or she shall proceed pursuant to applicable sections of this chapter including but not limited to sections 31.07, 31.09, 31.11, 31.13 and 31.21 of this article.