OMH-13-06-00014-A Due Process Protections Afforded to Residents of Residential Programs

1/24/07 N.Y. St. Reg. OMH-13-06-00014-A

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 4

January 24, 2007

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

NOTICE OF ADOPTION

 

I.D No. OMH-13-06-00014-A

Filing No. 40

Filing Date. Jan. 09, 2007

Effective Date. Jan. 24, 2007

Due Process Protections Afforded to Residents of Residential Programs

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of sections 595.9(f) and (g) and 595.10(a)(2)(vii) of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 7.09 and 31.04

Subject:

Due process protections afforded to residents of residential programs serving adults with a severe and persistent mental illness who are being discharged from such programs prior to being discharge ready.

Purpose:

To strengthen the due process protections for certain residents of residential programs serving adults diagnosed with a severe and persistent mental illness who are discharged prior to being discharge ready.

Text of final rule:

1. Paragraph (2) of subdivision (c) of Section 595.9 of Title 14 NYCRR is amended to read as follows:

(2) the resident's [medical status, psychiatric status, and/or] condition has changed, as follows:

(i) the psychiatric or medical status of the resident has changed such that the resident requires inpatient hospital care; and/or

(ii) the resident's capacity for self preservation, as determined pursuant to section 595.16 of this Part, requires a level of care other than the residential program, or the resident is otherwise at risk due to requiring additional medical or psychiatric services or supports not available within the residential program.

2. Subdivisions (f) and (g) of Section 595.9 of Title 14 NYCRR are amended to read as follows:

(f) A discharge under [paragraph (c)(3) or (2) of this section for those individuals no longer capable of self preservation] subparagraph (c)(2)(ii) of this section, or a discharge under paragraph (c)(3) of this section, requires the following:

(1) The provider shall first [strive] make every reasonable effort to assist the resident in meeting [such] the responsibilities of residency as agreed to by the resident and documented in the clinical record or facilitate the resident's ability for self preservation, as applicable.

(2) If efforts under paragraph (1) of this subdivision are not successful, the provider shall conduct a clinical assessment and [strive] make every reasonable effort to identify a mutually agreed upon discharge plan. The provider and the resident shall consult as needed with the local governmental unit or other appropriate entities in an effort to have any differences between the involved parties mediated or to obtain assistance in procuring residential and service alternatives, which shall include referral to a single point of access process (or a similar successor process), where such process has been established by the local governmental unit.

(3) If efforts under paragraph (2) of this subdivision are not successful, the provider must give the resident a written 30-day preliminary notice of the intent to terminate residency providing the reason(s) for termination, any potential process for correcting the situation and alternative residential and service options. If requested by the local governmental unit, the provider shall send the written notice to the local governmental unit. If the discharge is predicated upon a resident [being] no longer being capable of self preservation, that reason must be included in such notice. Such notice shall also identify the resident grievance procedure as required in subdivision (a) of Section 595.10 of this Part, and shall advise the resident of the availability of the mental hygiene legal service.

(4) If efforts under paragraph (3) of this subdivision are not successful, the provider shall give the resident a written final notice of the intent to terminate residency [within] in 30 days, which shall set forth the reasons for termination, as well as alternative residential and service options which shall include referral to a single point of access process (or a similar successor process), where such process has been established by the local governmental unit. Such notice shall also advise the resident that he or she has the right to submit a written objection to the Office of Mental Health contact person, identified in accordance with the subdivision (a) of Section 595.10 of this Part, within 5 days of the date of the written final notice of intent to terminate residency. If requested by the local governmental unit, the provider shall send the written notice to the local governmental unit.

(5) If the resident elects to object to the determination, he or she must mail a written objection to the Office of Mental Health contact person, within 5 days of receipt of written notice of intent to terminate residency. Upon receipt of such written objection, the Office of Mental Health contact person or his/her designee shall offer the involved parties an opportunity to be heard, which shall include holding a meeting involving all relevant parties, unless waived by all parties. The meeting should be held within 10 days from the date of receipt of written notice to terminate residency, whenever possible. A written decision shall be issued to the involved parties within 5 days thereafter. An audio recording of the meeting shall be made, which shall be used, disclosed, and maintained in accordance with federal and state laws and regulations governing the privacy of individually identifying health information. The mental hygiene legal service or other advocate chosen by the resident may assist the resident with the presentation of his or her objection.

(6) If any party to the proceeding is not satisfied with the decision, a request may be made for an administrative review by the Commissioner. The Commissioner may designate an individual to conduct such administrative review and fulfill his or her responsibilities in accordance with this paragraph.

(i) The request for administrative review shall be made within 5 days of the date of receipt of the written decision of the Office of Mental Health contact person. Such request may include a written detailed statement of the factual issues in dispute.

(ii) The mental hygiene legal service or other advocate chosen by the resident may assist the resident with the submission or may make a submission on his or her behalf, provided, however, that if the submission is not made by the resident, a duly executed authorization form permitting disclosure of information to the mental hygiene legal service or other advocate for the purpose of administrative review of the matter at hand must accompany such submission.

(iii) The Commissioner will issue a final written decision to all parties within 10 days of receipt of the request for an administrative review, which shall be based on the meeting, the written submissions of the involved parties and any relevant documentation provided to the Commissioner by the involved parties. The Commissioner may, at his or her discretion, send the matter back to the relevant Office of Mental Health contact person for further review, which must take place within the 10 day period for the Commissioner's review.

(iv) The determination after the Commissioner's administrative review of the matter shall be final and is not subject to further administrative review.

(7) During the period that an objection is undergoing administrative review:

(i) the resident shall participate in all programming in which he or she agreed to participate, as set forth in the residency agreement; and

(ii) every effort feasible shall be made to maintain the resident in at least his or her current level of programming.

(g) A discharge under paragraph (c)(4) of this section requires the following:

(1) [An observation] The provider of service must determine that the resident's behavior poses an immediate and substantial threat to the health and well-being of the resident or other individuals or creates a serious and ongoing disruption to the therapeutic environment of the residential program. [The observation] This determination shall be documented in the clinical record. In such instance, nothing in this Section shall preclude the provider of service [may immediately arrange] from immediately arranging for the removal of the resident to a location which has been determined to be an appropriate location for the resident given the resident's current status, needs, and conduct. Such location shall have the capacity to provide reasonable safety for the resident. If necessary, such removal shall be conducted by a mental health crisis team, where available, or a police officer who is a member of an authorized police department or force, or a sheriff's department.

(2) The provider of service may give the resident a final written notice of the intent to terminate residency with in 30 days, or if subdivision (h) of this section applies, the period provided for therein, which shall set forth the reasons for termination, as well as alternative residential and service options[,]. Such notice shall also advise the resident that he or she has the right to submit a written objection to the Office of Mental Health contact person, identified in accordance with the subdivision (a) of Section 595.10 of this Part, within 5 days of the date of the written final notice of intent to terminate residency. The notice shall also identify the resident grievance procedure as required in subdivision (a) of Section 595.10 of this Part, and shall advise the resident of the availability of the mental hygiene legal service. If requested by the local governmental unit, the provider shall send the written notice to the local governmental unit.

(3) The provider of service shall make diligent efforts to conduct a clinical assessment by clinical staff who are qualified by credentials, training and experience to conduct such assessments to either assist in the reentry of the resident to the program or to recommend discharge from the program. Such efforts shall be documented in the clinical record. The provider of service shall also make diligent efforts, in consultation with the local governmental unit, to make [Recommendations] recommendations for appropriate residential and treatment alternatives and interventions available to the resident [shall be made] upon discharge from the program, which shall include referral to a single point of access process (or a similar successor process) where such process has been established by the local governmental unit.

(4) If the resident elects to object to the determination, he or she must mail a written objection to the Office of Mental Health contact person, within 5 days of receipt of the final written notice of intent to terminate residency. Upon receipt of such written objection, the Office of Mental Health contact person or his/her designee shall offer the involved parties an opportunity to be heard, which shall include holding a meeting involving all relevant parties, unless waived by all parties. Such meeting should occur within 10 days of receipt of the resident's written objection, whenever possible. A written decision shall be issued to the involved parties within 5 days thereafter. An audio recording of the meeting shall be made, which shall be used, disclosed, and maintained in accordance with federal and state laws and regulations governing the privacy of individually identifying health information. The mental hygiene legal service or other advocate chosen by the resident may assist the resident with the presentation of his or her objection.

(5) If any party to the proceeding is not satisfied with the decision, a written request may be made for an administrative review by the Commissioner. The Commissioner may designate an individual to conduct such administrative review and fulfill his or her responsibilities in accordance with this paragraph.

(i)The request for administrative review shall be made within 5 days of the date of receipt of the written decision by the Office of Mental Health contact person. Such request may include a written detailed statement of the factual issues in dispute.

(ii) The mental hygiene legal service or other advocate chosen by the resident may assist the resident with the submission or may make a submission on his or her behalf, provided, however, that if the submission is not made by the resident, a duly executed authorization form permitting disclosure of information to the mental hygiene legal service or other advocate for the purpose of administrative review of the matter at hand must accompany such submission.

(iii) The Commissioner will issue a final written decision to all parties within 10 days of receipt of the request for an administrative review, which shall be based on the meeting, the written submissions of the involved parties and any relevant documentation provided to the Commissioner by the involved parties. The Commissioner may, at his or her discretion, send the matter back to the relevant Office of Mental Health contact person for further review, which must take place within the 10 day period for the Commissioner's review.

(iv) The determination after the Commissioner's administrative review of the matter shall be final and is not subject to further administrative review.

(6) During the period that the matter is being reviewed by the Office of Mental Health contact person, or by the Commissioner or his/her designee, nothing herein shall preclude a relocation or discharge of a person pending a final administrative decision, provided, however, that the resident shall be assured appropriate residency, and every effort shall be made to maintain the health and safety of all residents of the program, until the issuance of a final administrative determination.

(i) The program shall hold the bed until such time as determination by the Commissioner is made, but in such circumstances the bed need not be held for more than 30 days.

(ii) In the event the final determination of the Commissioner or his or her designee is that there lacked sufficient grounds to terminate the residency, the Commissioner shall direct that the resident be permitted to re-enter the program, unless it is determined that it would be clinically inappropriate for the resident or others for such resident to so return. In this event, prior to issuing his/her final determination within 10 days of receipt of the request for an administrative review in accordance with paragraph (5) of this subdivision, the Commissioner (or his or her designee) must provide sufficient written notice to the resident and the program, and to any persons authorized by the resident to receive such notice, that relevant clinical information for consideration by the Commissioner may be submitted within 5 days from the date of such notice.

3. Subparagraph (vii) of paragraph (2) of subdivision (a) of Section 595.10 of Title 14 NYCRR is amended to read as follows:

(vii) the resident grievance procedure, which shall:

(a) ensure an objective review of the issues, timely resolution and adequate documentation;

(b) ensure that the name and number of a New York State Office of Mental Health contact person is made available to a resident upon admission and again whenever a grievance process cannot be resolved to the satisfaction of all parties;

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 595.9(c)(2), (f), (6)(iii), (f)(5), (g)(4) and (5)(iii).

Text of rule and any required statements and analyses may be obtained from:

Julie Rodak, Director, Bureau of Policy, Regulation and Legislation, Office of Mental Health, 44 Holland Ave., Albany, NY 12229, [phone], e-mail: [e-mail]

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 provision of services for the mentally ill pursuant to an operating certificate.

2. Legislative objectives:

14 NYCRR Part 595 sets forth standards for the operation of licensed residential programs serving adult individuals diagnosed with a severe and persistent mental illness.

3. Needs and benefits:

Part 595 was developed to establish operating and administration standards for licensed residential programs serving adult individuals diagnosed with a severe and persistent mental illness. In December of 2003, Disability Advocates, Inc. (DAI) initiated a lawsuit challenging that portion of 14 NYCRR Part 595 which permits residents in residential programs for adults to be removed without the need for the provider to go to Housing Court for an eviction order. The challenge was brought in federal court (Northern District of New York) on the basis of federal due process and equal protection guarantees. OMH's position in response to this challenge is that landlord/tenant law does not apply, as licensed residential programs are treatment programs, not housing programs. As such, residents are discharged from these programs, not evicted from housing. In fact, discharge planning commences at the time the resident is admitted to the program.

DAI indicated it would be willing to consider settling the matter if the provisions of Part 595 in question were amended to provide additional due process protections to residents. These proposed amendments represent the results of our settlement discussions with them.

4. Costs:

(a) There are no additional costs to the providers associated with the implementation and continuing compliance with these regulations. However, these amendments may result in an additional cost to providers in certain cases where a resident wishes to appeal a determination to discharge him or her based on the grounds set forth in 14 NYCRR Section 595.9(c)(4), (i.e., the resident's behavior poses an immediate and substantial threat to the health, safety, and well-being of the resident or other individuals or creates a serious and ongoing disruption of the therapeutic environment of the residential program). Although the program retains the ability to immediately relocate the resident, under the proposed revisions, in cases where a resident so discharged elects to appeal this determination, the proposed amendments will require the program to hold the bed for the resident until such time as a determination by the Commissioner is made regarding the appropriateness of the relocation or discharge, but in such circumstances the bed need not be held for more than 30 days. This may, only in those cases, result in some additional cost to providers as they will not be able to repopulate the bed during this time.

(b) Neither the Office of Mental Health nor local governmental units will incur increases in expenditures associated with the rule.

5. Local government mandates:

While no new mandates are directly imposed on local governments, in cases where non discharge-ready residents are discharged, specific reference is now made to utilization of a single point of access process (or similar successor process), where such process has been established by the local governmental unit, to obtain assistance in procuring residential and service alternatives. However, no new or additional duties or responsibilities are imposed upon county, city, town, village, school or fire districts.

6. Paperwork:

The regulatory amendment will not require providers of service to furnish additional information, reports, records, or data.

7. Duplication:

The regulatory amendment does not duplicate existing State or federal requirements.

8. Alternatives:

The only alternative to the regulatory amendments is to proceed with the litigation. While OMH does not believe that the regulations in their current form violate federal due process and equal protection guarantees in any way and believes that the suit can be successfully defended, the consequences of OMH losing the lawsuit could be very serious for persons with mental illness. Were OMH to lose the lawsuit, it is possible that disputed discharges from the programs to which these regulations apply could only be made by obtaining an order of eviction through the Housing Court. This would not only be very costly to individual providers, but it would likely have a devastating negative impact on the continued availability of these programs for many persons suffering from mental illness, particularly those who have higher service needs. OMH believes these amendments represent a reasonable compromise in recognizing that residential programs for adults are first and foremost treatment programs, but providing reasonable dispute resolution due process for residents who are to be discharged from the program before they are discharge ready.

9. Federal standards:

The regulatory amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule:

[The amendments will be effective upon adoption] The amendments shall apply to discharges for which notices to terminate have been issued on or after April 1, 2007.

Regulatory Flexibility Analysis

The public comments received and revisions made to the Express Terms published with this Notice of Adoption do not require a change to the Regulatory Flexibility Analysis that was last published in the March 29, 2006 issue of the State Register. No substantial revisions were made to the express terms and the changes made merely provided further clarification of the rule.

Rural Area Flexibility Analysis

The public comments received and revisions made to the Express Terms published with this Notice of Adoption do not require a change to the Rural Area Regulatory Flexibility Analysis that was last published in the March 29, 2006 issue of the State Register. No substantial revisions were made to the express terms and the changes made merely provided further clarification of the rule.

Job Impact Statement

The public comments received and revisions made to the Express Terms published with this Notice of Adoption do not require a change to the Job Impact Statement that was last published in the March 29, 2006 issue of the State Register. No substantial revisions were made to the express terms and the changes made merely provided further clarification of the rule.

Assessment of Public Comment

Comments were received from one trade organization, which raised a number of issues, as follows:

1. Issue: To ensure that residential programs are not subject to landlord/tenant claims, OMH should pursue legislation to amend the RPAPL.

Response: This comment goes beyond the scope of the proposed amendments.

2. Issue: An objection was raised with respect to any outside entity making discharge decisions. The proposed amendments give OMH ultimate authority over decisions that create the most risk to program participants and staff.

Response: In cases where there is an immediate risk to program participants and staff, the regulations permit a relocation or discharge of the individual pending a final administrative decision. The process is also designed to maximize the opportunities for the program and individual to reach agreement on a discharge decision, with the matter only coming before OMH in cases where such an agreement could not be reached. Decisions will be made based on whether or not the provider complied with applicable laws and regulations, consistent with OMH's authority as set forth in Mental Hygiene Law Sections 31.01, 31.02, and 31.04.

3. Issue: There is no deadline for the OMH contact person to offer involved parties an opportunity to be heard, which could extend the process indefinitely.

Response: The regulations have been amended to accommodate this comment, such that in each place in the regulations in which such a meeting is required, it must be held within 10 days from the date of receipt of written notice to terminate residency, whenever possible.

4. Issue: There is no deadline for OMH within which to review a request for administrative review, if sent by the Commissioner to an OMH contact person.

Response: The regulations were amended to clarify that in each case where the Commissioner sends the matter back to the relevant OMH contact person for further review, this review must take place within the 10 day period for the Commissioner's review.

5. Issue: In cases where a person has been discharged because he or she requires a higher level of medical or psychiatric care, the provisions of the amendments that require providers to make every effort feasible to maintain the individual in at least his/her current level of programming do not make sense.

Response: We agree. The regulations were clarified to ensure that persons who require a higher level of medical or psychiatric care will have their beds held for 45 days in accordance with 14 NYCRR Section 595.9(h), but will not be subject to the requirements of either subdivisions (f) or (g) of such Section.

6. Issue: The word “observation” is replaced by “determination” in Section 595.9(g)(1), however the term “determination” is not defined. It implies a higher threshold, and may mean that a clinical judgment need be made.

Response: This is an opinion. We do not agree. Prior to the change, providers must make “an observation” that the resident's behavior poses an immediate and substantial threat to the health and well-being of the resident, or create a serious disruption. In other words, such an event must actually occur in order for it to be observed. A “determination” gives a provider latitude in taking many things into consideration, including but not necessarily limited to an “observation.”

7. Issue: Under Part 595.9(g)(6)(i), it is unclear if the determination in this section applies to the appropriateness of the decision to relocate or discharge, or if it applies to the actual placement.

Response: Reference to a determination in this subparagraph is to the pending determination that will be made in Section 595.9(g)(6)(ii), which indicates that the determination applies to whether or not there were sufficient grounds to terminate the residency.

8. Issue: With respect to Section 595.9 (g)(6)(ii), an objection was raised with respect to the resident being given an opportunity to submit additional clinical information, without similar consideration given to the provider.

Response: We agree. The regulations have been amended such that both the resident and the program are provided with the same opportunity to submit additional information.

9. Issue: There is disagreement with respect to whether there will be additional costs to providers as a result of these amendments.

Response: OMH maintains there are no additional costs to the providers associated with the implementation and continuing compliance with these regulations. We acknowledge that these amendments may result in an additional cost to providers in certain cases where a resident wishes to appeal a determination to discharge him or her based on the grounds set forth in 14 NYCRR Section 595.9(c)(4), (i.e., the resident's behavior poses an immediate and substantial threat to the health, safety, and well-being of the resident or other individuals or creates a serious and ongoing disruption of the therapeutic environment of the residential program). Although the program retains the ability to immediately relocate the resident, under the proposed revisions, in cases where a resident so discharged elects to appeal this determination, the proposed amendments will require the program to hold the bed for the resident until such time as a determination by the Commissioner is made regarding the appropriateness of the relocation or discharge, but in such circumstances the bed need not be held for more than 30 days. This may, only in those cases, result in some additional cost to providers as they will not be able to repopulate the bed during this time. Working proactively to resolve disagreements before they reach this level, or voluntarily working with a resident and the OMH Field Offices to seek alternative placement in cases where disagreements are not able to be resolved may reduce the number of cases that reach this level.

10. Issue: It is impossible for providers to be in compliance with the amendments on the date adopted.

Response: OMH has amended the compliance schedule such that the amendments will apply to discharges made on or after April 1, 2007. A Revised Regulatory Impact Statement has been submitted amending the compliance schedule in this fashion.