Extend rights in Part 527 to inmates receiving services at DOCCS regional medical units/residential crisis treatment programs.
Text of final rule:
1. Paragraph (1) of subdivision (a) of section 527.1 of Title 14 NYCRR is amended as follows:
(1) Except as otherwise indicated by the specific context, and with the exception of sections 527.4 and 527.6, this Part shall apply to all psychiatric hospitals operated by the Office of Mental Health, all residential treatment facilities for children and youth, and to all psychiatric hospital services required to have an operating certificate from the Office of Mental Health, and provided further that section 527.8 of this Part shall also apply to all secure treatment facilities operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law. Only section 527.8(c)(5) of this Part shall apply to regional medical units operated by the Department of Corrections and Community Supervision at which the Office of Mental Health provides outpatient psychiatric treatment, and to correctional facilities operated by the Department of Corrections and Community Supervision at which the Office of Mental Health operates a residential crisis treatment program, except that section 527.8(c)(5) shall not be applicable under circumstances in which it is inconsistent with the Correction Law or Department of Corrections and Community Supervision regulations.
2. Subdivision (b) of section 527.1 of Title 14 NYCRR is amended as follows:
(b) The intent of this Part is to define the rights of patients receiving treatment at psychiatric hospitals and to extend certain rights provided in section 527.8 of this Part to persons confined or committed to secure treatment facilities operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law. Only section 527.8(c)(5) of this Part shall apply to the regional medical units operated by the Department of Corrections and Community Supervision at which the Office of Mental Health provides outpatient psychiatric treatment, and to correctional facilities operated by the Department of Corrections and Community Supervision at which the Office of Mental Health operates a residential crisis treatment program, except that section 527.8(c)(5) shall not be applicable under circumstances in which it is inconsistent with the Correction Law and Department of Corrections and Community Supervision regulations.
3. A new subdivision (g) is added to section 527.2 of Title 14 NYCRR and subdivisions (g) and (h) are relettered as (h) and (i) as follows:
(g) Section 401 of the Correction Law provides that the Office of Mental Health and the Department of Corrections and Community Supervision shall be jointly responsible for the administration and operation of programs for the care and treatment of inmates with mental illness who are in need of psychiatric services but who do not require hospitalization for the treatment of mental illness.
[(g)] (h) Article 29-C of the Public Health Law establishes the right of competent adults to appoint an agent to make health care decisions in the event they lose decisionmaking capacity. Article 29-C further empowers the Office of Mental Health to establish regulations regarding the creation and use of health care proxies in mental health facilities.
[(h)] (i) The Omnibus Budget Reconciliation Act of 1990 (Public Law 101-508, sections 4206 and 4751) requires that institutional providers participating in the Medicare or Medical Assistance programs inform patients about their rights, under State law, to express their preferences regarding health care decisions.
4. A new paragraph (8) is added to subdivision (a) of section 527.8 of Title 14 NYCRR as follows:
(8) Inmate patient means a person committed to the custody of the Department of Corrections and Community Supervision who is an outpatient of Central New York Psychiatric Center at the regional medical units operated by the Department of Corrections and Community Supervision at which the Office of Mental Health provides outpatient psychiatric treatment, and at correctional facilities operated by the Department of Corrections and Community Supervision at which the Office of Mental Health operates a residential crisis treatment program.
5. A new paragraph (5) is added to subdivision (c) of section 527.8 of Title 14 NYCRR and the existing paragraph (5) is amended and renumbered as paragraph (6) as follows:
(5) Inmate Patients.
(i) Except in emergency circumstances as provided in paragraph (1) of this subdivision, an inmate patient may not be given a psychotropic medication over his or her objection without court authorization.
(ii) Prior to requesting court authorization to administer psychotropic medication to an objecting inmate patient, the clinical director, or his or her designee, of Central New York Psychiatric Center, must determine that the administration of psychotropic medication is in the inmate patient's best interests and that the inmate patient lacks capacity to make a reasoned decision concerning administration of such medication. In making such determination, the clinical director, or his or her designee, shall ensure compliance with the procedures described below. In the interest of prompt resolution of conflicts regarding administration of psychotropic medication over objection, each of the evaluations of an inmate patient described below should be completed within 24 hours.
(a) Evaluation by treating physician. Upon an inmate patient's objection to the proposed administration of psychotropic medication, the treating physician shall formally evaluate whether the administration of psychotropic medication is in the inmate patient's best interests, in light of all relevant circumstances including the risks, benefits and alternatives to the inmate patient of the administration of psychotropic medication, and the nature of the inmate patient's objection thereto, and whether the inmate patient has the capacity to make a reasoned decision concerning the administration of such medication. If the physician finds that administration of psychotropic medication is in the inmate patient's best interests and the inmate patient lacks capacity to make a reasoned decision concerning administration of such medication, he or she shall personally inform the inmate patient of his or her determination. If the inmate patient continues to object to the proposed psychotropic medication, the physician shall forward his or her evaluation and findings to the clinical director with a request for further review. He or she shall also notify in writing the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient of his or her determination and request, if any, for further review.
(b) Review by the clinical director or his or her designee.
(1) Upon receipt of the treating physician's request for further review, the clinical director shall appoint a physician to evaluate whether the proposed administration of psychotropic medication is in the inmate patient's best interests, and whether the inmate patient has the capacity to make a reasoned decision concerning treatment. The reviewing physician may be any physician of suitable expertise relative to the proposed administration of psychotropic medication and may be an employee of the facility, including the clinical director, or independent of the facility. In performing his or her evaluation, such physician shall review the inmate patient's record and personally examine the inmate patient. If the reviewing physician's determination is administration of psychotropic medication over objection is appropriate, he or she shall personally inform the inmate patient of his determination.
(2) If there is a substantial discrepancy between the opinions of the treating physician and reviewing physician regarding the inmate patient's capacity or whether administration of psychotropic medication is in the inmate patient's best interests, the clinical director may, at his or her option, appoint a third physician to conduct an evaluation pursuant to this subparagraph.
(3) If, after completion of the evaluation by the reviewing physician (or physicians), the inmate patient continues to object to the proposed administration of psychotropic medication, the clinical director shall make a determination on behalf of the facility whether the inmate patient has capacity to make a reasoned decision concerning the administration of psychotropic medication and whether such medication is in the inmate patient's best interests. If the clinical director finds that the inmate patient has capacity to make a reasoned decision concerning the administration of psychotropic medication or that such medication would not be in the inmate patient's best interests, he or she shall uphold the inmate patient’s objections and so notify the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient. If the clinical director’s determination is that the inmate patient lacks capacity, and psychotropic medication over objection is in the inmate patient’s best interests, he or she may apply for court authorization of administration of psychotropic medication, and so notify the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient.
[(5)](6) Nothing in this subdivision shall prevent a treating physician, treatment team, or others involved in the patient's or inmate patient’s care from continuing to explain the proposed treatment to the patient or inmate patient as described in subdivision (a) of this section[,] and to seek his or her voluntary agreement thereto[;].Further, the facility [to] shall ensure that any such efforts are made in a clinically appropriate manner. A patient or inmate patient may at any time withdraw his or her objection to the proposed treatment, and the treating physician may at any time substitute another professionally acceptable course of treatment to which the patient or inmate patient does not object. Upon the withdrawal of the patient's or inmate patient’s objection or his or her agreement to a substituted course of treatment, the physician shall immediately notify by telephone Mental Hygiene Legal Service and the patient's or inmate patient’s attorney, if any. Unless the patient or inmate patient, Mental Hygiene Legal Service or the patient's or inmate patient’s attorney [renew] renews the objection, treatment may be commenced 24 hours after notice has been provided. If the Mental Hygiene Legal Service or the patient's or inmate patient’s attorney [agree] agrees, treatment may be commenced immediately. Notwithstanding a patient's or inmate patient’s withdrawal of his or her objection to a proposed treatment, nothing in this paragraph shall diminish or supersede the need for obtaining informed consent for the proposed treatment when so required under section 27.9 of this Title or under other provisions of law.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 527.1(a) and (b).
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, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
A revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement is not submitted with this notice because the change being made to the final version of the rule making is non-substantive. The change merely serves to improve readability. The meaning of the statement that is being changed remains the same.
Assessment of Public Comment
The agency received four letters of comment pertaining to the amendments to 14 NYCRR Part 527. The comments are addressed below.
Issue: Commenters suggested that the proposed regulation would permit court ordered medication outside of a psychiatric hospital when removal to a hospital is the preferable option where intensive treatment and medication education can be done.
Response: The agency does not agree that removal to a hospital for an application for court ordered medication is always preferable. There are situations and reasons that either prevent removal to a hospital or where continued treatment in the prison setting are best for a patient. This regulation would provide more options for successful treatment. This regulation would only be considered when court ordered medication while in the prison setting or Residential Medical Unit (RMU) is in the best interests of the patient, and clinically necessary.
As an example, this regulation was initially proposed when there was a patient in the RMU who had a serious mental illness and was refusing both medicine for a heart condition and psychotropic medication. Central New York Psychiatric Center (CNYPC) was unable to admit the patient to the hospital because of his unstable medical condition. If this regulation had been in place, a court order could have been pursued for psychotropic medication. If psychiatric stability had been reached, the hope was that he would be able to understand the need for the heart medication.
The agency does not agree that intensive treatment and medication education cannot be provided in the correctional facility. The proposed regulations only allow an application for court ordered psychotropic medication (COPM) when the patient is at a correctional facility that has a Residential Crisis Treatment Program (RCTP) or RMU. The correctional facilities that house a RCTP are mental health service level 1 or 2 facilities which contain satellite units. Such units have an extensive mental health presence, including a treating psychiatrist in collaboration with Office of Mental Health (Office) nursing staff, that will provide treatment and medication education both prior to application for COPM and after the court order has been received. The units currently provide such treatment and education to patients subject to active treatment over objection orders or COPMs. Additionally, such requirements will be written into the Corrections Based Operations Manual. If the patient is in the RMU, the Office will also provide treatment and medication education as necessary. This will also be stated in the Corrections Based Operations Manual.
Issue: Commenters indicated that the non-emergency admission procedures under Section 402 of the Correction Law were underutilized.
Response: The Office does not agree. In recent years, the agency has pursued a number of commitments utilizing section 402(1) of the Correction Law. The majority of applications were unworkable due to the amount of time the application took (4 to 6 months) and the inability of the local county courts to find a psychiatric examiner who was willing to go to a correctional facility to conduct an evaluation. In these instances, the application for commitment under 402(1) was never completed. Due to the time delay, in many instances the patient further decompensated to the point of meeting the emergency criteria under 402(9). Waiting until a patient has deteriorated to this extent is not in the best interest of the patient. There is evidence that not all patients are able to return to their prior level of stability once decompensation, or multiple decompensations, has occurred, even if treatment is eventually provided. These psychiatric decompensations also increase the risk of dangerousness and, therefore, increase the potential for injury to the patient and/or others.
Furthermore, Section 402 of the Correction Law recognizes that, under certain circumstances, it is preferable to treat an inmate patient at a correctional facility, rather than hospitalizing a patient at CNYPC. A commitment occurs under Section 402 CL only after “alternate forms of care and treatment available during such confinement in such correctional facility that might be adequate to provide for such inmate’s needs without requiring hospitalization” should be considered. (402 (1) Correction Law.) However, the Office will continue to consider using 402(1) where commitment to a psychiatric hospital is clinically indicated.
Issue: Commenters expressed concern that the regulations do not specify where the patient will be housed in the correctional facility when receiving court ordered medication and recommended that the patient not be placed in a Special Housing Unit or Keep Lock when receiving medication.
Response: The Office will address this concern in the Corrections Based Organization Manual. As part of the procedure, the manual will require that CNYPC recommend to the Department of Corrections and Community Supervision (DOCCS) that each of these patients be placed in a Residential Mental Health Treatment Unit if there is a court order for psychotropic medication obtained. If there are no disciplinary sanctions, CNYPC will recommend that the patient be placed in the Intermediate Care Program.
Issue: A commentator recommended that the regulations should include the provision that an inmate patient should be placed in the RCTP prior to administering a court order for medication and should include a specified period of monitoring for side effects. The commentator also recommended transfer to CNYPC if the patient is unable to be moved to the RCTP dormitory within four days after administering the medication.
Response: The agency does not agree that a patient should be placed in the RCTP prior to administration of court ordered medication. Successful administration and monitoring for side effects can occur within the correctional facility due to the mental health staff available. Currently, mental health staff provide such administration and monitoring for side effects for patients who voluntarily take medication and for those who have active court orders for psychiatric medication obtained while hospitalized at CNYPC. If at any time it is in the patient’s best interest to place him or her in the RCTP, that will be done. Additionally, if it is clinically indicated and the patient meets the criteria for admission to CNYPC, he or she will be admitted.
Issue: Commenter discussed what the roles of DOCCS and the Office will be in administering the court ordered medication and where the patient will be physically in the correctional facility when the medication it given.
Response: The administration of court ordered medication will be conducted pursuant to Section 3.10 of the Corrections Based Manual. CNYPC and DOCCS have administered court ordered medication frequently since they have been administering COPMs that have been obtained while the patient was at CNYPC. The current procedure will be utilized.
Issue: One commentator asked about protocols for monitoring side effects.
Response: These protocols are currently in place. The satellite units in the prisons currently monitor all patients for side effects after taking medication. The medication monitoring is analogous to the monitoring at CNYPC. There are many patients in the prison system who voluntarily take psychiatric medication and are carefully monitored for side effects.
Issue: One commenter discussed that a physical exam of the patient is conducted upon admission to CNYPC and at that time if there are contraindications of specific medications, they would be identified.
Response: If there are contraindications concerning a specific medication, the treatment team at the correctional facility would be aware of it. The patient will be well known to the treatment team and to the clinician and if there was a need for a physical examination, the Office would refer the patient to DOCCS medical. In fact, all of the Level 1 and 2 facilities have bi-monthly Joint Medical meetings to discuss patients with co-morbid psychiatric and medical issues. This includes a discussion of patients on various psychotropic medications.
Issue: Commenters indicated that the hospital will have individual treatment plans and clinical supports and counseling.
Response: Satellite units have treatment plans and clinical supports analogous to inpatient hospitalization at CNYPC.
Issue: Commenter recommended specific regulations governing minimum staffing requirements and procedures for monitoring side effects.
Response: The agency believes that the current staff at the satellite units is able to handle the requirements necessary for administering court ordered medication. As mentioned earlier in this assessment, the satellite unit currently monitors side effects of medication and active court orders for psychotropic medications. If it becomes necessary to specify any of these requirements, it will be done in the CBO Manual.
Issue: Commenters recommended that an independent physician provide the second review which will allow consideration of alternative treatment.
Response: The agency does not agree that this is necessary. The second review will be done by a physician who is not part of the treatment team. Such physician will follow Section 402(1) and consider alternative treatment as required by law.
Issue: One commentator asked if there will be new standards enunciated for CNYPC inpatient referrals.
Response: The agency does not anticipate that there will be any change in CNYPC inpatient referrals. If a patient meets the criteria for inpatient admission and it is in the patient’s best interest, he or she will be admitted to CNYPC.
Issue: One commentator requested that if an inmate patient does elect to take the medication voluntarily, it be recognized and documented in the clinical record.
Response: CNYPC currently does recognize when a patient voluntarily takes his or her medication and it is currently documented in the clinical record. The procedure for administration of a COPM in the CBO Manual, 3.10, also discusses giving the patient the opportunity to take his or her medication voluntarily prior to administering involuntarily.
Issue: Two commentators were concerned that medication will be used for a disciplinary purpose or to drug an inmate patient into compliance with a situational problem.
Response: The Office does not medicate patients due to disciplinary problems or to comply with a problem at a correctional facility. A patient is medicated if it is clinically indicated and is in the best interest of the patient. There is no reason to assume that because of the amendments to these regulations that this will change. CNYPC will continue to provide treatment as clinically indicated.
Issue: One commentator indicated that court ordered medication should not be part of normal treatment but only when other treatments fail.
Response: Court ordered medications are for patients who have decompensated due to noncompliance with treatment and after a finding by the court that the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest, taking into consideration all relevant circumstances, including the patient's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatment. This should not be confused with routine treatment.
Conclusion: The Office does acknowledge the concerns raised by the commenters and will only be seeking court ordered medication over objection under one or more of the following three circumstances: (1) when the patient is medically unable to be committed to CNYPC; (2) when the patient previously had a COPM which has expired; or (3) when the patient is in the RCTP for a clinically appropriate period of time, does not meet the emergency criteria for commitment to CNYPC and would benefit from medication. These conditions will be set forth in the CBO Manual. Additionally, any application for a COPM shall be consistent with Rivers v. Katz and, therefore, Office clinicians will have concluded that the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest, taking into consideration all relevant circumstances, including the patient's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatment.
