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, 2012    * 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, 20125.  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.    * (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, 2012    * (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   therequirements  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, 2012--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.