Are NYS OMH’s license policies violating our Mental Health Act?

For an  answer to the above question you have to read OMH’s policies.

NOTE: I’m not a lawyer, nor a paralegal, or a legal counselor or legal advocate. These are my opinions, the opinions of a lay person’s interested in understanding the State’s mental health laws and the ADA. These comments are intended to open a public discussion about NYS OMH’s license policies.

I: NYS Mental Health Act, Title E,  Section 31.02 Operating certificate required.

A. But what does that mean?

That statement that “operating certificate required” looks to me like a declaratory statement:  a requirement for something has been stated. It doesn’t seem to imply in any way, shape or form that operating certificates (op cert) are required only for a few people or only in few  occasions. The statement that “operating certificate required” carries a meaning of purpose and intention: ‘Let it be no doubt about it: operating certificate required, PERIOD.’ That’s what it seems to say and imply. Don’t you agree?

So why has OMH declared that (in what seems to me to be) about half of all mental health providers do not need an operating certificate? I would understand it if FEW providers were exempted from the mandate; after all, every law has an exception on how it is applied:

(a)  Except as provided in subdivision (b) of this section…

That’s the ONLY exemption in the mandate that “operating certificate required”. And what does that exemption say?

(b)  A  provider  of services operating a community residence on April first, nineteen  hundred  seventy-six [1967!],  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.

That’s the only exemption: that a provider running a community residence program open for business since April 1967 or before will be exempt from the requirement IF the operation is deemed “lawful” by today’ standards.  I venture to say that MOST programs we have today didn’t open for business until after at least 1985, the decade of the big changes in our public mental health system. Those programs would NOT qualify for the exemption. I hope you agree with me up to here.

What activities are mandated to have an op cert?

(a)…no provider of services shall engage in any of the following activities  [ there are 5] without  an operating  certificate…
1. operation of a residential facility  or  institution,  including  a
  community residence,…

Let’s see this one first. Only in court would you split hairs in interpreting the meaning of “residential facility”, “facility” “or community residence”. If you are in a  supported housing program (SHP), you would consider it a “residential facility”, wouldn’t you? Same if you live in congregate housing, SRO, etc, whether or NOT it was run by an institution. It seems logical: I live there, therefore it IS  a RESIDENCE.

Are there any other exemptions if, as I said, they ALWAYS exist in any law? Yes, they are here too! Continuing on the same “(a)1” as above:

It shall not include a place where the services rendered consist solely of non-residential services for the mentally disabled which are exempt from the requirement for an operating certificate under article sixteen, thirty-one or thirty-two of this chapter, nor shall it include domestic care and comfort to a person in the home.

So here we have the characteristics  of those services exempted of the requirement to have an op cert:

a. services that are SOLELY non-residential in nature – this means that if there is at least ONE residential service in it, it is NOT exempt from the op cert requirement, it HAS to have one. To be exempt it has to be SOLELY of non-residential nature AND, in addition…

b. services SOLELY of non-residential nature which are  exempt by articles 16, 31 or 32 of this chapter. That means that even non-residential services REQUIRE an op cert  if they are not “exempt by articles 16, 31 or 32 of this chapter.” There seems to be an intent running through these exemptions: that as long as you provide SERVICES, you  MUST HAVE AN OP CERT, PERIOD. (caps are for emphasis, not shouting.). Whether residential OR NON-RESIDENTIAL, you must have an op cert.

c. domestic care and comfort at home is not required to have op cert.

This intent that all services require an op cert is shown in the second description of activities that require one:

2. operation of any part of a general hospital for the purpose of providing residential or non-residential services for the mentally disabled.

And if you are still not satisfied that the INTENT of this “op cert required” is to have ALL mental health services covered by a mandate, check the third characteristic of services which must have one:

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;”

Even “corporations”, not only public  “board” and “commission” and ‘agency” must have an op cert EVEN if they provide out-patient or non-residential services. Of course, there are the eternal exemptions in this case too  for these “corporations’ which provide non residential services. These are:  pastoral mental health services, providers licensed by another agency, and private practice.

The 4th and 5th activities which requires op cert:

4. operation of a residential treatment facility for children and youth.

5. operation of a residential care center for adults.

So there you have it. The INTENT of our NYS Mental Health Act seems to be that providers of services, including out-patient, residential and non-residential services, must have an op cert.

Again, why have OMH apparently decertified more than half of all providers of these services?

II: Why op cert required?

The question is Why are so many programs exempt? Does it matter? Of course it does! This is the DMH/OMH reason for having op certs:

Part 70.01 (b)2…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.

So, no license = no accountability, no safety, no quality of services. This explains why so many providers accused of abuses on consumers go without punishment: because they are unlicensed! The State has no power of oversight if these providers are unlicensed. To be unlicensed means to be OUTSIDE OUR PUBLIC mental health system.

These are two of the six reasons given by the Act for having an op cert:

“(a) No operating certificate shall be issued by the commissioner unless the commissioner finds:

1. that the premises, equipment, personnel, records, and program are adequate and appropriate to provide the services for the mentally disabled which are sought to be authorized,

2. that such services will be provided in compliance with applicable law and regulations,”  at NY Code – Section 31.05: Issuance of an operating certificate.

Look it up yourselves in the link below, don’t take my words for it: more than half of programs are unlicensed, meaning out side our public system, not required to provide MINIMUM quality of services and protection, etc, etc, etc. See them here and count for yourselves, then answer the question: Why are so many programs unlicensed?

NYS Consolidated Budget and Claiming Manual, Appendix F – OMH Programs Types, Definitions and Codes

(start at 0040 – Family Care
(Licensed Program)

Next: OMH’s licensing rules. Are they in violation of the ADA?

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