§ 16.03 Operating certificate required.\n (a) No provider of services shall engage in any of the following\nactivities without an operating certificate issued by the commissioner\npursuant to this article:\n (1) Operation of a residential facility for the care and treatment of\npersons with developmental disabilities including a family care home.\n (2) Operation of any distinct part of a general hospital or other\nfacility possessing an operating certificate, pursuant to article\ntwenty-eight of the public health law, operated for the primary purpose\nof providing residential or non-residential services for persons with\ndevelopmental disabilities.\n (3) Operation of a facility established or maintained by a public\nagency, board, or commission, or by a corporation or voluntary\nassociation for the rendition of out-patient or non-residential services\nfor persons with developmental disabilities; provided, however, that\nsuch operation shall not be deemed to include (i) professional practice,\nwithin the scope of a professional license or certificate issued by an\nagency of the state, by an individual practitioner or by a partnership\nof such individuals or by a professional service corporation duly\nincorporated pursuant to the business corporation law or by a university\nfaculty practice corporation duly incorporated pursuant to the\nnot-for-profit corporation law or (ii) non-residential services which\nare licensed, supervised, or operated by another agency of the state and\nnon-residential services which are chartered or issued a certificate of\nincorporation pursuant to the education law or (iii) pastoral counseling\nby a clergyman or minister, including those defined as clergyman or\nminister by section two of the religious corporations law.\n (4) The provision of home and community based services approved under\na waiver program authorized pursuant to section eleven hundred fifteen\nof the federal social security act or subdivision (c) of section\nnineteen hundred fifteen of the federal social security act and\nsubdivisions seven and seven-a of section three hundred sixty-six of the\nsocial services law, provided that an operating certificate issued\npursuant to this paragraph shall only authorize services in a home or\ncommunity setting.\n (5) The provision of services approved in a medicaid state plan\nauthorized pursuant to section nineteen hundred two of the federal\nsocial security act, including optional state plan services authorized\npursuant to subdivision (g) of section nineteen hundred fifteen of the\nfederal social security act, and designated by the commissioner of\nhealth, in consultation with the commissioner, as being for persons with\ndevelopmental disabilities.\n (b) The commissioner shall enter into a cooperative agreement with the\ncommissioner of education with respect to all issues regarding\ncertification under this article of providers of non-residential\nservices which are chartered or issued a certificate of incorporation\npursuant to the education law.\n (c) The commissioner shall enter into a cooperative agreement with the\ncommissioner of health with respect to all issues regarding\ncertification under this article of providers of services possessing an\noperating certificate pursuant to article twenty-eight of the public\nhealth law.\n (d) The operation of a facility or provision of services for which an\noperating certificate is required pursuant to this article shall be in\naccordance with the terms of the operating certificate and the\nregulations of the commissioner.\n (e) Any provider of services who knowingly fails to comply with the\nprovisions of this section shall be guilty of a misdemeanor.\n (f) Any provider of services that holds an operating certificate\npursuant to paragraph four of subdivision (a) of this section, shall be\nauthorized to employ or contract with persons licensed to practice\nnursing pursuant to article one hundred thirty-nine of the education\nlaw; e
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