N.Y. Comp. Codes R. & Regs. tit. 14 § 100.7

Current through Register Vol. 46, No. 43, October 23, 2024

Section 100.7 - Review of certain decisions of local governmental units

Mental Hygiene Law, § 11.13, subd. (e).

(a)Introduction.

Article 11 of the Mental Hygiene Law makes clear that the policy of the State is that the local governmental unit shall be the operative agency for insuring that local services for the mentally disabled are provided. The units are charged with this responsibility for planning, supervising and coordinating such local services. Local programs carried out pursuant to the law and to this Part which have been approved by the department are eligible for State aid in accordance with the formulas set forth in the law. Voluntary organizations offering community services pursuant to contract with local governmental units have been recognized as an extremely important component of the community services program. In approving the plan for each community, as submitted by its local governmental unit, the department makes every effort to see that the local plan is well balanced and makes full use of community resources, including the use of voluntary organizations which have the expertise and the resources to participate in community programs. Section 11.13, subdivision (e) of the Mental Hygiene Law provides that a non-profit agency which has been refused a contract by a local governmental unit may appeal to the commissioner. If the commissioner upholds the appeal, the department may enter into a direct contract with the agency. This Part sets forth the criteria and the procedures for appeal and decision under that section. The policy of the department remains one of encouraging local governmental units to make full use of voluntary organizations where appropriate for the development of community programs, and to resolve disagreement at the local level without the need for an appeal pursuant to this section.

(b)Right to appeal.

(1) A corporation, incorporated or existing, pursuant to the Not-for-Profit Corporation Law, which has the power to provide community mental health, mental retardation, or alcoholism services may appeal to the commissioner within 30 days from the date that such appellant has been notified of the refusal by the local governmental unit to enter into a contract with such appellant or within 30 days after the unit's failure to include such a contract in its plan or budget.

(2) An appeal may be had only where the application for a contract to the local governmental unit by the appellant does not involve the direct expenditure of local tax money.

(c)Written appeal and reply.

(1) An appeal to the commissioner pursuant to this section, must be in writing with a copy to the local governmental unit and to the appropriate regional office of the department. The written appeal must set forth facts showing the following:

(i) The details of the program which the appellant has offered in its proposed contract.

(ii) The need for the program in the community.

(iii) A showing that the appellant has the capacity to furnish the services. Specific detail must be shown that the appellant would be able to provide the place, the personnel and the organizational structure to effectuate the proposed program and that it has such licenses or approvals as are needed to operate such a program. The appellant must also show that it has the financial ability to provide sufficient funds to match State aid.

(iv) The appellant must show that it has made a concrete offer in writing with specific proposals to the local government within the time possible for inclusion of the item in the local plan and budget.

(v) A copy of the decision of local government to refuse to enter into the agreement or sufficient facts to show that there has been a definite decision to that effect must be submitted.

(2) The department will notify the local governmental unit of the appeal and will give the unit 30 days to make its reply to the appeal. In its reply, the unit shall set forth facts showing whether there was a substantial basis for its decision. The unit shall serve a copy of its reply, personally or by mail, upon the appellant.

(d)Conciliation.

Every effort shall be made by the department to conciliate the appellant and the unit. Informal sessions may be arranged for a discussion of the issues and an attempt to resolve the appeal without further formal procedure.

(e)Disposition without hearing.

If the appellant has failed to set forth in its written appeal a substantial basis for consideration of the matter by the commissioner, or if, on the basis of the facts appearing on the papers presented to the commissioner, there appears no substantial basis for appeal, the commissioner shall dismiss the appeal.

(f)Hearing.

(1) If a substantial basis for appeal has been presented by the appellant, and the efforts of the department at conciliation have failed, a hearing shall be held before the commissioner or someone designated by him at a time or times fixed by the commissioner. Written notice of the hearing shall be given to the appellant, the local governmental unit and such other persons as the commissioner may deem advisable.

(2) The hearing shall not be adjudicatory in nature and the rules applying to quasi-judicial hearings shall not apply. The appellant, the representatives of the local governmental unit, appropriate staff members of the department and other interested individuals may present their views to the commissioner on the merits of the appeal.

(3) Whenever possible, the commissioner shall designate a place in the county seat of the county from which the appeal has arisen for the conduct of the hearing.

(g)Decision.

(1) Within 20 days after the date that the hearing has closed, a decision shall be made by the commissioner on whether the appeal is meritorious.

(2) The commissioner shall notify the local governmental unit and the appellant of his decision. If the decision holds that the appeal is meritorious, the notice shall require that the local governmental unit give further consideration to the appellant's request and notify the commissioner within 20 days as to whether or not the unit has reconsidered its refusal.

(3) If a local governmental unit notifies the commissioner that it is willing to grant the contract requested by the appellant, the commissioner shall close the matter.

(4) If the local governmental unit notifies the commissioner that it is not willing to reconsider its refusal or if such unit fails to reply within the time specified, the commissioner may then decide whether to grant a contract directly with the appellant. A decision to grant a contract shall be within the sole discretion of the commissioner and shall be based on his judgment on the desirability of the program and the availability of funds for this purpose. In every case where the appeal has been found meritorious, regardless of whether or not a direct contract is granted, the commissioner shall direct a review of the adequacy of the local plan for community services for the mentally disabled.

(5) Direct contracts with agencies shall only be made under the following conditions:

(i) Contracts may only be made within existing appropriations.

(ii) The department shall not pay more than the percentage of the net cost of the services that the appellant would have received if the contract had been granted by the local governmental unit.

(iii) The term of any contract shall be limited to one year.

(iv) Further contracts will only be made directly with the appellant upon a showing by the appellant that it has submitted its proposal for future fiscal years to the local governmental unit and that such unit has continued to refuse to enter into a contract.

(v) Such other conditions as the commissioner may direct to insure that the service is adequate and suitable and appropriately related to other elements of the local plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.7