Sec. 810.7. Standards for approval of an application requiring full or administrative review

(a) To approve a project requiring either full or administrative review, the office must find the application meets all of the following:

(1) that there is a public need for the services at the time and place and under the circumstances proposed;

(2) that there are no facilities or services available which serve as alternatives or substitutes, for the services and facilities proposed;

(3) that there are no substantiated negative findings as to the character, competence and standing in the community of the applicant;

(4) that the available financial resources and the sources of future revenues are adequate to meet all necessary and proper capital and operating expenses;

(5) that services will be provided in compliance with applicable laws and regulations, including, but not limited to, the regulatory requirements of this Title;

(6) that the owners or principals of the applicant have demonstrated, and can substantiate, prior experience providing or managing substance use disorder treatment services;

(7) that the owners or principals of the applicant have received a criminal history information review pursuant to provisions of Part 805 of this Title, and the applicant has been subsequently approved by the office.

(b) In determining whether the requirements of subdivision (a) of this section are met, the office shall consider the extent to which:

(1) the services and facilities conform to local and statewide plans, including but not limited to plans for Medicaid managed care;

(2) the services and facilities will meet the particular needs of the community to be served, including identified target populations such as women, minorities, persons with low income, uninsured and underinsured persons, and other underserved groups;

(3) existing like services are able to meet or exceed regulatory compliance; and

(4) there exist any other matters determined to be in the public interest.

(c) If an application involves construction, the office may require the applicant to demonstrate, through the submission of detailed architectural schematic drawings, that the following requirements are met:

(1) that there is no more efficient architectural solution to the proposed construction;

(2) that the proposed construction will not adversely affect the costs of providing services;

(3) that the proposed construction conforms to applicable Federal, State and local laws and regulations; and

(4) that the proposed construction ensures patient confidentiality.

(d) Criteria and procedures for approval of leases.

(1) If an applicant proposes to lease a facility in which all or part of the proposed services are to be provided, the lease agreement shall include, but is not limited to, the following language: "The landlord acknowledges that the rights of reentry into the premises as set forth in this lease do not confer on the landlord the authority to operate a substance use disorder program. The landlord agrees to give the New York State Office of Alcoholism and Substance Abuse Services at least thirty days notice by certified mail of the intent to re-enter the premises or to initiate dispossess proceedings and at least sixty days notice of expiration of the lease."

(2) Lease terms must be for a term sufficient to ensure program continuity with an option to renew for an additional term of years. Longer terms may be required if financial support is provided for a capital project by the office.

(e) Amendment of an application.

Any amendment to an application, other than technical or minor amendment, that changes the application during the process of review to such an extent that it requires, in the opinion of the commissioner, a re-initiation of a full or administrative review in accordance with this Part must include a written explanation as to the reason for such amendments.

(f) Failure to provide the office with information about changes in an application or to obtain prior approval when required by this section may constitute grounds for the denial of authorization to provide services and revocation, limitation or amendment of any operating certificate previously granted for that application.

(g) Withdrawal of an application by the applicant.

An application made to the office in accordance with this Part may be voluntarily withdrawn by written notice from the applicant at any time prior to the decision of the commissioner.

(h) Criteria and procedures for approval of certificates of incorporation.

(1) Not-for-profit corporations. An entity incorporated or proposed to be incorporated under the Not-for-Profit Corporation Law shall provide the commissioner with a proposed certificate of incorporation or certificate of amendment that conforms with the requirements of the Not-for-Profit Corporation Law and the Mental Hygiene Law. The board of directors of a not-for-profit corporation shall:

(i) include qualified members, broadly representing the community, who have sufficient independence from senior management of such corporations and who will provide the board with expertise to oversee the agency's programmatic and fiscal operations, and any other criteria determined by the office;

(ii) the board shall include members from the community in which the services are to be provided;

(iii) board members shall avoid conflicts of interest, including but not limited to self dealings. Reimbursement to board members shall be documented and shall be limited to their reasonable costs and expenses in a manner which ensures that the integrity of the not-for-profit corporation will not be compromised;

(iv) no compensated employee or consultant of the corporation shall be a corporate director of such board; however, such employee or consultant of the corporation may be an ex officio corporate member without the right to vote;

(v) family members of senior management of the not-for-profit corporation shall be prohibited from serving on the board unless it can be sufficiently demonstrated to the office that the independence of the board will not be compromised by such appointment;

(vi) board members shall review on a regular basis the not-for-profit's operation, including but not limited to the performance and compensation of senior executives, the financial operations of the provider of services and implementation of corrective actions to ensure compliance with applicable rules and regulations governing such provider.

(2) Business corporations. For purposes of this paragraph, the term business entity shall mean any entity incorporated or proposed to be incorporated or organized under the Business Corporation Law or the Limited Liability Company Law.

(i) If the business entity is an individual practitioner, partnership of practitioners, a professional service limited liability company, or a professional service corporation of practitioners licensed and currently registered by the New York State Education Department in one of the health professions which is authorized to provide substance use disorder services, it is exempt from the requirement of needing an operating certificate from the office so long as all the following conditions are met:

(a) the business entity employs only persons licensed by the New York State Education Department in the same profession to provide professional services;

(b) the business entity practices under a name that does not indicate an intent, ability or willingness to operate a substance use disorder program; and

(c) a professional service corporation, limited liability company and any stockholder or member thereof has obtained all required approvals from the New York State Education Department and the Department of State.

(ii) If the business entity is not an exempt entity under subparagraph (i) of this paragraph, then it shall provide the commissioner with a proposed certificate of incorporation or certificate of amendment that conforms to the requirements of the Business Corporation Law and the Mental Hygiene Law.

(iii) Board of directors requirements. For all business entities not exempt under subparagraph (i) of this paragraph, the board of directors shall include members with a diversity of experience sufficient to ensure competent direction and control; and

(a) if any such board member is or has been an incorporator, board member, partner or stockholder in an entity which has operated a hospital, or any other type of residential facility certified by the State Department of Health or a residential facility for the developmentally disabled within the last 10 years, the name of each such facility and any interest such individual held or currently holds therein shall be reported to the commissioner;

(b) all stock or ownership certificates of a corporation shall contain a statement that no person shall own 10 percent or more of the stock of the corporation unless such person has been approved for ownership by the commissioner. The stock or ownership certificate shall also contain a statement that any transfer, assignment or other disposition of 10 percent or more of the stock or of 10 percent or more of the voting rights there under must receive the prior approval of the commissioner;

(c) no stock in such a corporation may be owned in its entirety or in part by another corporation.