(a) In addition to the criteria of sections 551.7 and 551.10 of this Part, applications for outpatient projects shall be reviewed against the criteria of this section.

(b) In reviewing outpatient projects, the Office of Mental Health shall consider:

(1) the advice and recommendations of the local governmental unit; and

(2) whether the project serves special populations[; and

(3) for projects in which the proposed operating budget includes reimbursement from Medicaid or local assistance, the impact, source, and availability of the State share from such funds:

(i) a currently licensed outpatient program submitting an application to change program category, or submitting an application for a significant expansion shall be considered as impacting the State share of local assistance and/or Medicaid only if current and proposed revenues represent significant new expenditures;

(ii) an application for a new outpatient program shall be considered as fully impacting the State share of local assistance or Medicaid; and

(iii) outpatient programs in a mental health special needs plan authorized pursuant to section 31.33 of the Mental Hygiene Law and section 4403-d of the Public Health Law shall not impact the State share of Medicaid, unless such outpatient program will bill the Medicaid program on a fee-for-service basis].

This rulemaking is filed as a Consensus rule on the grounds that its purpose is to repeal a provision that will no longer be applicable to any party, and it is otherwise non-controversial. Pursuant to Section 31.22 of the Mental Hygiene Law, the Office of Mental Health (OMH) is authorized to grant operating certificates to providers of mental health services upon such provider s demonstration of satisfaction of five statutory criteria, including the financial resources of the provider of services and its sources of future revenues. Paragraph (3) of subdivision (b) of 14 NYCRR Section 551.13 was initially enacted approximately a decade ago as a means for putting parameters on determinations of fiscal viability when considering applications for outpatient projects. OMH has determined that such requirement is no longer an essential criterion when making this determination and that removing same may facilitate the growth of new or expanded outpatient programs. Hence, since this requirement will no longer be applicable to any party, and is otherwise non-controversial, the amendment is appropriately filed as a Consensus rule.

Statutory Authority: Section 7.09 of the Mental Hygiene Law grants the Commissioner of the Office of Mental Health the authority and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

Section 31.02 of the Mental Hygiene Law requires that a provider of services must be issued an operating certificate in order to engage in the following activities: a residential facility, a freestanding psychiatric inpatient facility; part of a general hospital providing inpatient or nonresidential services; outpatient or nonresidential program; residential treatment facility for children and youth; or comprehensive psychiatric emergency program which serves individuals diagnosed with a mental illness.

Section 31.04 of the Mental Hygiene Law grants 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 and to establish procedures for the issuance and amendment of operating certificates.

Section 31.05 of the Mental Hygiene Law establishes criteria for the issuance of an operating certificate.

Section 31.22 of the Mental Hygiene Law establishes criteria for the approval of certain certificates of incorporation.

Section 31.23 of the Mental Hygiene Law establishes criteria for the approval of facility programs, services and sites.

It is clear from the nature of this regulatory amendment, which simply removes a specific requirement that the Office of Mental Health has determined is no longer necessary when reviewing applications for outpatient projects, that there will be no adverse impact on jobs or employment opportunities in New York State.