Home » 2013 Issues » January 16, 2013 » OMH-32-12-00019-A Operation of Psychiatric Inpatient Units of General Hospitals and Operation of Hospitals for Persons with Mental Illness
OMH-32-12-00019-A Operation of Psychiatric Inpatient Units of General Hospitals and Operation of Hospitals for Persons with Mental Illness
1/16/13 N.Y. St. Reg. OMH-32-12-00019-A
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 3
January 16, 2013
RULE MAKING ACTIVITIES
OFFICE OF MENTAL HEALTH
NOTICE OF ADOPTION
I.D No. OMH-32-12-00019-A
Filing No. 1289
Filing Date. Dec. 31, 2012
Effective Date. Jan. 16, 2013
Operation of Psychiatric Inpatient Units of General Hospitals and Operation of Hospitals for Persons with Mental Illness
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 580 and 582 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 7.09, 29.15 and 31.04
Subject:
Operation of Psychiatric Inpatient Units of General Hospitals and Operation of Hospitals for Persons with Mental Illness.
Purpose:
To establish provisions prohibiting the discharge of persons with serious mental illness to transitional adult homes.
Text of final rule:
1. A new subdivision (c) is added to Section 580.6 of Title 14 NYCRR to read as follows:
(c) Discharges.
(1) All discharges shall be in accordance with the provisions of section 29.15 of the Mental Hygiene Law, in a form and format designed by the Office.
(2) A hospital shall be prohibited from discharging any person with serious mental illness to a transitional adult home, as defined in regulations of the Commissioner of Health, unless the person was a resident of the home immediately prior to his or her current period of hospitalization.
2. A new subdivision (c) is added to Section 582.6 of Title 14 NYCRR to read as follows:
(c) Discharges.
(1) All discharges shall be in accordance with the provisions of section 29.15 of the Mental Hygiene Law, in a form and format designed by the Office.
(2) A hospital shall be prohibited from discharging any person with serious mental illness to a transitional adult home, as defined in regulations of the Commissioner of Health, unless the person was a resident of the home immediately prior to his or her current period of hospitalization.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 580.6(c)(2) and 582.6(c)(2).
Text of rule and any required statements and analyses may be obtained from:
Sue Watson, NYS Office of Mental Health, 44 Holland Avenue, Albany, NY 12229, (518) 474-1331, email: Sue.Watson@omh.ny.gov
Revised Regulatory Impact Statement
1. Statutory authority: Sections 7.09 and 31.04 of the Mental Hygiene Law grant 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 and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for persons with mental illness pursuant to an operating certificate.
Section 29.15 of the Mental Hygiene Law establishes requirements for the discharge or conditional release of patients from hospitals operated by the Office of Mental Health (Office) or from psychiatric inpatient services subject to licensure by such Office.
2. Legislative objectives: Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner's authority to establish regulations regarding mental health programs. The proposed rule furthers the legislative policy of providing high quality mental health services to individuals with mental illness in a safe and secure environment by establishing provisions prohibiting the discharge of patients with serious mental illness to transitional adult homes.
3. Needs and benefits: The proposed amendments to 14 NYCRR Part 580 and 14 NYCRR Part 582 prohibit the discharge of a person with serious mental illness to a transitional adult home, as defined in the regulations of the Commissioner of Health, unless the person was a resident of the home immediately prior to his or her current period of hospitalization. The Office is charged with the responsibility of providing care and treatment for persons with serious mental illness with the goal of supporting and assisting individuals toward integration into the community.
Mixed use, larger scale congregate housing is an important and viable form of community living. However, certain settings where there are a significant number of individuals with serious mental illness may not be conducive to recovery for the residents. A Clinical Advisory from the Office of Mental Health's Chief Medical Officer was issued on August 8, 2012, and an update to that Clinical Advisory was issued on October 1, 2012, prohibiting the discharge of persons with serious mental illness from OMH-licensed or operated psychiatric hospitals to transitional adult homes, formerly known as impacted adult homes unless they were admitted to the psychiatric hospital from the transitional adult home. Transitional adult homes are defined by the Commissioner of Health as adult homes with a certified capacity of 80 beds or more in which at least 25 percent of the residents are persons with serious mental illness.
Transitional adult homes are not designed to effectively serve large numbers of people with serious mental illness, are not licensed by the Office, nor are they under the clinical quality control of the Office. In addition, the transitional adult home model does not foster independent living, with the use of congregate meals, ritualized medication administration and programming that may not be tailored to the individual needs of the residents. Further, the absence of specifically designed rehabilitation and recovery oriented programs is not conducive to the goal of integration into the community.
4. Costs:
(a) cost to State government: These regulatory amendments will not result in any additional costs to State government.
(b) cost to local government: These regulatory amendments will not result in any additional costs to local government.
(c) cost to regulated parties: These regulatory amendments will not result in any additional costs to regulated parties.
5. Local government mandates: These regulatory amendments will not result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.
6. Paperwork: No increased paperwork is anticipated as a result of the amendments to Parts 580 and 582.
7. Duplication: These regulatory amendments do not duplicate existing State or federal requirements.
8. Alternatives: The only alternative to the regulatory amendment that was considered was inaction. Since inaction would be contrary to good clinical practice with the goal of patients being integrated into the community, that alternative was necessarily rejected.
9. Federal standards: The regulatory amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance schedule: The regulatory amendments are effective immediately upon adoption.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not being submitted with this notice because the changes to the final version of the rule are non-substantive. The final adopted rule clarifies the Office's intention that the amendments to 14 NYCRR Parts 580 and 582 pertain to the discharge of individuals with serious mental illness to transitional adult homes, and reflects the use of "person-first" language.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not being submitted with this notice because the changes to the final version of the rule are non-substantive. The final adopted rule clarifies the Office's intention that the amendments to 14 NYCRR Parts 580 and 582 pertain to the discharge of individuals with serious mental illness to transitional adult homes, and reflects the use of "person-first" language.
Revised Job Impact Statement
A revised Job Impact Statement is not being submitted with this notice because the changes to the final version of the rule are non-substantive. The final adopted rule clarifies the Office's intention that the amendments to 14 NYCRR Parts 580 and 582 pertain to the discharge of individuals with serious mental illness to transitional adult homes, and reflects the use of "person-first" language.
Assessment of Public Comment
Introduction
The Office of Mental Health received a number of comments during the public comment period regarding the clinical advisory and the amendment of Parts 580 and 582 of Title 14 NYCRR, Operation of Psychiatric Inpatient Units of General Hospitals and Operation of Hospitals for Persons with Mental Illness. While the agency has made several technical and clarifying amendments to the regulation and the clinical advisory in response to these comments, none of these amendments resulted in substantive change to the regulation. In an effort to capture the comments in an easy-to-read format, they are addressed by section below.
Clinical Advisory
On August 8, 2012, OMH's Chief Medical Officer issued a clinical advisory prohibiting the discharge of patients from OMH-licensed or operated psychiatric hospitals to "Transitional Adult Homes" or "Impacted Adult Homes." A second, modified advisory, which incorporated the comments listed below, was issued on October 1, 2012.
A number of commenters objected to the initial advisory, noting that it was enforcing proposed regulations not yet promulgated. The advisory was modified and now states that the advisory will not take effect until OMH and DOH finalize and promulgate the proposed regulations affecting Adult Homes.
One commenter noted that the clinical advisory was even broader than the proposed regulation as it applied to both transitional and impacted adult homes. That comment was accepted and the clinical advisory was amended to apply to only persons with serious mental illness who are being considered for discharge to "Transitional Adult Homes" as defined in the final DOH adult home regulations.
Several commenters noted that the clinical advisory did not allow for a person to be discharged to an adult home if he or she was a resident of that home prior to their current hospitalization. This Office agreed with this comment and the advisory was amended accordingly.
Certain commenters suggested that the clinical advisory is overbroad and unsupported by data. One commenter noted that this Office does not know the Adult Home population and therefore is unable to state what each Adult Home resident may want or need. The same commenter maintained that there is insufficient empirical evidence that alternative community settings are better at serving adult home residents than are adult homes. This Office disagrees with these comments. The clinical advisory reflects the latest developments in the field and current treatment for those individuals with serious and persistent mental illness. This Office's Chief Medical Officer has concluded that Adult Homes with a significant proportion of residents with serious mental illness are not conducive to the recovery and rehabilitation of these individuals, and often cannot provide the supports needed for individuals with serious and persistent mental illness. As such, this Office is committed to assist in the provision of alternative housing options and community supports for residents with serious mental illnesses who reside in these transitional adult homes in an effort to promote individual recovery and rehabilitation efforts.
Other commenters agreed with the clinical advisory and believe that it is supported by the cumulative experience of mental health professionals.
Statutory Authority
Several commenters expressed the opinion that the proposed regulation directly modifies Mental Hygiene Law section 29.15 by prohibiting discharges to transitional adult homes. Two commenters noted that OMH cannot modify section 29.15 through an administrative rule making, stating that OMH must receive legislative approval of this policy initiative. This Office does not agree with this analysis. Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner's authority to establish regulations to set the quality and standards of facilities that provide services for persons with mental illness. Additionally, the proposed regulation is based upon the clinical advisory and furthers the legislative policy of providing high quality mental health services to individuals with serious mental illness in a safe and secure environment.
Serious Mental Illness
One commenter noted that the definition of serious mental illness in Section 487.2(c) of the Department of Health regulations, which the OMH regulations incorporate by reference, does not adequately define what the criteria established by the Commissioner of Mental Health will be in order to determine if someone has a serious mental illness. One commenter noted that the definition does not specify how a practitioner is able to determine whether a particular mental illness has the "severity and duration that results in substantial functional disability."
"Serious mental illness" is defined in New York Mental Hygiene Law 1.03. Additionally, 14 NYCRR § 599.4(p) provides the following definition:
Designated mental illness: means a disruption of normal cognitive, emotional, or behavioral functioning, which can be classified and diagnosed using the current edition of the Diagnostic and Statistical Manual of Mental Illness other than: alcohol or drug disorders, developmental disabilities, organic brain syndromes or social conditions (V codes), and whose severity and duration of mental illness results in substantial functional disability.
"Substantial functional disability" is defined in OMH supported housing guidelines as:
Extended impairment in Functioning Due to Mental Illness:
a) Documentation that the individual has experienced two of the following four functional limitations due to a designated mental illness over the past 12 months on a continuous or intermittent basis:
i. Marked difficulties in self care
ii. Marked restriction of activities of daily living
iii. Marked difficulties in maintaining social functioning
iv. Frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner
Or
b) Reliance on Psychiatric Treatment, Rehabilitation and Supports
A documented history shows that the individual at some prior time met the threshold for extended impairment in functioning due to mental illness, but the symptoms and/or functioning problems are currently attenuated by medication or psychiatric rehabilitation and supports. Medication refers to psychotropic medications which may control certain primary manifestations of mental disorder; e.g. hallucinations, but may or may not affect functional limitations imposed by the mental disorder.
Rather than amending their regulations in order to address these comments, OMH and DOH will draft joint guidance on the definition of SMI that is consistent with these definitions and criteria and post the guidance on their respective public websites.
Two commenters noted that the definition of serious mental illness is overly broad because "having received services in the last five years" may include those individuals who saw a mental health practitioner sporadically, or only once, during the last five years and have since recovered. OMH generally agrees with this comment because the definition of persons with serious mental illness is limited to individuals who have a chronic mental illness. DOH has modified the definition of serious mental illness in its regulations by eliminating Section 487.2(c)(2), which referred to persons who are receiving or have received within the past five years services from a mental hygiene provider which is licensed, operated or funded by OMH. The OMH regulations incorporate the modified definition by reference. One commenter noted that the definition fails to distinguish between primary, secondary and tertiary diagnoses. OMH declines to incorporate this change. The current definition accurately reflects the intent of the definition, which depends upon the individual's diagnosis, length of illness and ability to function.
Individuals whose sole diagnosis is episodic depression or anxiety would not fall under the definition of persons with serious mental illness unless their diagnosis results in a substantial functional disability. The joint DOH/OMH guidance will reflect these principles.
Restrictions on Discharge to Adult Homes
One commenter proposed that the restriction on discharges to Adult Homes should apply only to persons with serious mental illness and not to every person. This Office agrees and has incorporated this change in the final rule.
Two commenters noted that it should be the responsibility of the local Directors of Community Services (DCS) to determine whether or not an adult home is the best available placement for an individual. Pursuant to Article 31 of the Mental Hygiene Law, the Commissioner of the Office of Mental Health has the authority to set standards of quality and adequacy of facilities, therefore, OMH declined to accept this comment. However, it should be noted that OMH regularly consults with and has close working relationships with DCS's and the statewide organization that represents them.
Transitional Adult Homes
Commenters suggested that the 25% figure used to define "transitional adult homes" is far too low to be used as a ceiling. Several commenters noted that this determination was made without any assessment of these facilities or their residents. As stated in the clinical advisory, large scale congregate housing with a concentration of significant numbers of people with mental illnesses are not clinically appropriate nor are they conducive to recovery. This Office believes it is necessary to provide adult home residents with serious mental illness the opportunity to receive services in the most integrated setting possible, so long as that environment is appropriate to their mental health needs. This Office believes that the 25% figure is appropriate and will not be changed.
Some commenters objected to the limitation of the definition of a Transitional Adult Home to homes with a certified capacity of 80 beds or more, arguing that all adult homes with a mental health census of 25% or more should be included in the definition of a Transitional Adult Home. DOH declines to make a change based on this comment because OMH's clinical opinion is that the impact of a mental health census of 25% or more is problematic primarily in the larger adult homes.
Several commenters noted that Assisted Living Programs (ALPs) should be carved out of the definition of Transitional Adult Homes. ALPs are regulated by DOH, and DOH has declined to accept this recommendation. DOH will publish a list of Transitional Adult Homes, subject to change based on available data, following final adoption of these regulations.
Rights of Adult Home Residents
Several commenters stated that denying admission to an adult home to persons with serious mental illness for reasons unrelated to their own needs is unlawful and discriminatory under both State and Federal laws, including the Fair Housing Act and the Americans with Disabilities Act. The Office does not agree. The proposed regulation is based upon the clinical advisory and furthers the legislative policy of providing high quality mental health services to individuals with serious mental illness in a safe and secure environment. The clinical advisory applies to persons with serious mental illness who are being considered for discharge only to "Transitional Adult Homes," as defined in the Department of Health Adult Home regulations. The Office believes that transitional adult homes are not designed to effectively meet the needs of large numbers of people with serious mental illness. Once a transitional adult home reduces its mental health census to under 25%, the facility becomes a potential discharge option for persons with a serious mental illness.
Some commenters also argued that requiring Transitional Adult Homes to reduce their mental health census to less than 25% of the resident population would force the discharge of thousands of adult home residents, resulting in more people becoming homeless or requiring hospitalization. DOH and OMH disagree with these comments. In October, 2012, OMH issued a Request for Proposals for the development and operation of up to 1050 units of Supported Housing in Queens and Brooklyn. These units are being developed to facilitate the transition to alternative community settings for individuals with serious mental illness currently residing in transitional adult homes. Contracts have been awarded and the anticipated start date will be in early 2013. Furthermore, additional Supported Housing will be developed in the coming months.
Contrary to concerns expressed by some commenters, the regulations do not alter or conflict with statutory and regulatory requirements governing the discharge of residents from adult homes. Transition to alternative community settings will take place in a manner that is consistent with existing statutory and regulatory requirements. The DOH regulations are designed to provide all current transitional adult home residents with serious mental illness a choice to either stay in the adult home or transition to a community setting. For those who stay in adult homes, the DOH regulations require that compliance plans include plans to provide residents with rehabilitative and recovery oriented programs.
Costs to State
Commenters argued that there was a lack of data to support the Regulatory Impact Statement as it relates to cost. One commenter noted that OMH did not demonstrate how the State came to the $20,000 figure for supported housing units, others noted that the State will have to substantially increase funding for supported services for these individuals. The Office of Mental Health currently subsidizes community housing, including supported housing. The Office of Mental Health provides a State Stipend of $14,493 per person for each Supported Housing unit in New York City. This funding is for rent stipends, housing case management services and contingency funds. The remaining cost is an estimate for other community based mental health services. OMH will be evaluating the community services needed for adult home residents as assessments are completed and individuals start the transition to the community.
Commenters also argued that the costs of the regulations to the State will exceed the cost of adult home residence because many current residents of adult homes will be unable to live in an alternative community setting without various supportive services, and in some cases, 24-hour care, which will increase costs. DOH and OMH believe that any potential increase in expenditures is justified in light of OMH's clinical advisory, and added costs for supported apartments and anticipated support services are included in the Budget. DOH believes that some of these costs may be partially offset by savings in Medicaid spending. When transitional adult home residents move to alternative community settings, some service savings could accrue through better management of chronic disease, including mental illness.
Two commenters expressed the belief that as a result of the regulations, there will be increased hospitalizations or placements into more costly treatment settings. Another commenter believed that the regulations would result in higher criminal justice costs and more returns to homeless shelters. OMH and DOH regards these comments as opinions rather than recommendations for amendments to the regulation. Accordingly, no changes were made to the Regulatory Impact Statement as a result of these comments.
