N.Y. Comp. Codes R. & Regs. tit. 14 § 70.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 70.1 - Background and intent

(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.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 70.1