Section 31.02. Operating certificate required

(a)  Except as provided in subdivision (b) of this section no provider
  of services shall engage in any of the following activities  without  an
  operating  certificate  issued  by  the  commissioner  pursuant  to this
  article:
    1. operation of a residential facility  or  institution,  including  a
  community residence, for the care, custody, or treatment of the mentally
  disabled;  provided, however, that giving domestic care and comfort to a
  person in the home shall not constitute such an operation.
    2. operation of any part of a general  hospital  for  the  purpose  of
  providing  residential  or  non-residential  services  for  the mentally
  disabled.
    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;
  provided,  however,  that  such operation shall not be deemed to include
  (i) professional practice, within the scope of a professional license or
  certificate  issued  by  an  agency  of  the  state,  by  an  individual
  practitioner   or   by  a  partnership  of  such  individuals  or  by  a
  professional service  corporation  duly  incorporated  pursuant  to  the
  business corporation law or by a university faculty practice corporation
  duly incorporated pursuant to the not-for-profit corporation law or (ii)
  non-residential  services which are licensed, supervised, or operated by
  another agency of  the  state  and  nonresidential  services  which  are
  chartered  or  issued  a  certificate  of  incorporation pursuant to the
  education law or (iii) pastoral counseling by a clergyman  or  minister,
  including  those  defined as clergyman or minister by section two of the
  religious corporations law.
    4. operation of a residential  treatment  facility  for  children  and
  youth.
    5. operation of a residential care center for adults.
    * 6. operation of a comprehensive psychiatric emergency program.
    * NB Repealed July 1, 2012
    (b)  A  provider  of services operating a community residence on April
  first, nineteen  hundred  seventy-six,  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. An application pursuant to this section
  shall be deemed filed with the  department  upon  being  mailed  to  the
  department by registered or certified mail.
    (c)  The operation of a facility for which an operating certificate is
  required shall  be  in  accordance  with  the  terms  of  the  operating
  certificate and the regulations of the commissioner.
    (d)  Any  provider  of services who knowingly fails to comply with the
  provisions of this section or of section 31.03 of this article shall  be
  guilty of a misdemeanor.
    (e) If the commissioner has reason to believe that there is a provider
  of  services  for  the mentally disabled who does not possess a required
  current valid operating certificate, he or she shall proceed pursuant to
  applicable sections  of  this  chapter  including  but  not  limited  to
  sections 31.07, 31.09, 31.11, 31.13 and 31.21 of this article.