Part 501 - Waiver Authority

Express Terms
(14 NYCRR Part 501)

1. Pursuant to the authority granted the Commissioner in §7.09(b) and 31.04(a) of the Mental Hygiene Law, Title 14 of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended by adding a new Part 501, to read as follows:

PART 501
MENTAL HEALTH SERVICES – GENERAL PROVISIONS

Sec.
501.1 Legal base
501.2 Definitions
501.3 Waiver
501.4 Severability

§501.1 Legal base.

(a) Section 7.09 of the Mental Hygiene Law gives the Commissioner of the Office of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(b) Section 31.01 of the Mental Hygiene Law charges the Commissioner of the Office of Mental Health with the responsibility to promulgate rules and regulations requiring the development of evaluation criteria and methods including, but not limited to: uniform definitions of services for persons with mental disabilities; uniform financial and clinical reporting procedures; requirements for the generation and maintenance of uniform data for all individuals receiving services from any provider of services; uniform criteria for evaluating categories of need; and uniform standards for all comparable services and programs.

(c) Section 31.04 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to adopt regulations to effectuate the provisions and purposes of Article 31 of such law, including procedures for the issuance and amendment of operating certificates, and for setting standards of quality and adequacy of facilities.

§501.2 Definitions. For purposes of this Title:

(a) Commissioner means the Commissioner of the New York State Office of Mental Health.

(b) Office means the New York State Office of Mental Health.

(c) Provider of services means a provider of services, as defined in section 1.03 of the Mental Hygiene Law, which is responsible for the operation of a program or network of programs. Such entity may be an individual, partnership, association, corporation, limited liability company, or public or private agency, other than an agency of the state, which provides services for persons with mental illness.

(d) Mental illness means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.

(e) Minor means a person who has not attained the age of eighteen years.

§501.3 Waiver

(a) Waiver.

(1) The Commissioner shall have the authority to waive regulatory requirements within Chapter XIII of this Title, which are not otherwise required by State or Federal law.

(2) The Commissioner may grant a waiver of a regulatory requirement requested pursuant to this section if he/she determines that:

(i) the rights, health and safety of clients would not be diminished;

(ii) the best interests of clients would be served;

(iii) the benefits of waiving the requirement outweigh the public interest in meeting the requirement; and

(iv) the purpose of the request is to implement/test innovative programs that may increase the efficiency or effectiveness of operations, to provide additional flexibility to better meet local service needs while maintaining program quality and integrity, or other purposes deemed appropriate by the Commissioner.

(3) The granting of waivers will be at the sole discretion of the Commissioner.

(4) A request for a waiver must be submitted in writing, must clearly cite the regulatory requirements at issue, must provide sufficient evidence of prior consultation with the appropriate local governmental unit or units, must contain substantial documentation to support the need for the waiver, including documentation which demonstrates that it is consistent with the provisions of paragraph two of this subdivision, and must include such other information as the Commissioner may require.

(5) Special limits, conditions or restrictions may be established by the Commissioner in granting a waiver.

(6) Waivers issued under this section shall be in effect for no longer than three years. In the case of a waiver granted to a provider of services for whom an operating certificate has been issued pursuant to Article 31 of the Mental Hygiene Law, such waiver shall be in effect no longer than the duration of the operating certificate held by the facility for which such waiver is granted. Waivers shall not be renewed unless the entity to whom the waiver has been issued submits a request for renewal to the Commissioner, provides such other information as the Commissioner may require, and documents to the satisfaction of the Commissioner that there has been consultation with the appropriate local governmental unit or units and that such renewal is consistent with the provisions of paragraph two of this subdivision.

(7) The Office shall provide public notice of applications for waivers by posting such information on its internet site. The Office shall review and consider any public comments which are received regarding the application for a waiver. The Office shall supplement its internet posting with the Commissioner's determination with respect to each application, when such determination is made.

(b) Nothing in this section shall be deemed to limit the ability of the Commissioner to waive regulations, to the extent permitted by law, in extreme emergencies, such as natural disasters, acts of terrorism, or as directed by the Governor.

(c) Nothing in this section shall be deemed to alter the Commissioner's authority to waive regulatory requirements in accordance with specific authority established in other Parts of Chapter XIII of this Title.

§501.4 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without the invalid provision or application, and to this end the provisions of this Part are declared to be severable.

501TEXT.7.17.08