§ 31.02 Operating certificate required.\n (a) Except as provided in subdivision (b) of this section no provider\nof services shall engage in any of the following activities without an\noperating certificate issued by the commissioner pursuant to this\narticle:\n 1. operation of a residential facility or institution, including a\ncommunity residence, for the care, custody, or treatment of the mentally\ndisabled; provided, however, that giving domestic care and comfort to a\nperson in the home shall not constitute such an operation.\n 2. operation of any part of a general hospital for the purpose of\nproviding residential or non-residential services for the mentally\ndisabled.\n 3. operation of a facility established or maintained by a public\nagency, board, or commission, or by a corporation for the rendition of\nout-patient or non-residential services for the mentally disabled;\nprovided, however, that such operation shall not be deemed to include\n(i) professional practice, within the scope of a professional license or\ncertificate issued by an agency of the state, by an individual\npractitioner or by a partnership of such individuals or by a\nprofessional service corporation duly incorporated pursuant to the\nbusiness corporation law or by a university faculty practice corporation\nduly incorporated pursuant to the not-for-profit corporation law or (ii)\nnon-residential services which are licensed, supervised, or operated by\nanother agency of the state and nonresidential services which are\nchartered or issued a certificate of incorporation pursuant to the\neducation law or (iii) pastoral counseling by a clergyman or minister,\nincluding those defined as clergyman or minister by section two of the\nreligious corporations law.\n 4. operation of a residential treatment facility for children and\nyouth.\n 5. operation of a residential care center for adults.\n * 6. operation of a comprehensive psychiatric emergency program.\n * NB Repealed July 1, 2027\n (b) A provider of services operating a community residence on April\nfirst, nineteen hundred seventy-six, shall be issued an operating\ncertificate by the commissioner without requiring proof that there is a\npublic need for such residence, providing application for such operating\ncertificate to the department in accordance with this article is\nsubmitted prior to September first, nineteen hundred seventy-six.\nPending the determination of any such application the continuance of\nsuch operation shall be lawful. An application pursuant to this section\nshall be deemed filed with the department upon being mailed to the\ndepartment by registered or certified mail.\n (c) The operation of a facility for which an operating certificate is\nrequired shall be in accordance with the terms of the operating\ncertificate and the regulations of the commissioner.\n (d) Any provider of services who knowingly fails to comply with the\nprovisions of this section or of section 31.03 of this article shall be\nguilty of a misdemeanor.\n (e) If the commissioner has reason to believe that there is a provider\nof services for the mentally disabled who does not possess a required\ncurrent valid operating certificate, he or she shall proceed pursuant to\napplicable sections of this chapter including but not limited to\nsections 31.07, 31.09, 31.11, 31.13 and 31.21 of this article.\n (f) No provision of this article or any other provision of law shall\nbe construed to require a provider licensed pursuant to article\ntwenty-eight of the public health law or certified pursuant to article\nsixteen or article thirty-two of this chapter to obtain an operating\ncertificate from the office of mental health if such provider has been\nauthorized to provide integrated services in accordance with regulations\nissued by the commissioner of the office of mental health in\nconsultation with the commissioner of the department of health, the\ncommissioner of the office of alcoholism and substance abuse se
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