OMH-51-07-00004-P Communication and Patient Visiting Rights

12/19/07 N.Y. St. Reg. OMH-51-07-00004-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 51

December 19, 2007

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. OMH-51-07-00004-P

Communication and Patient Visiting Rights

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

Proposed action:

Repeal of Part 21 and amendment of Part 527 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, art. 7 and section 33.05

Subject:

Communication and patient visiting rights.

Purpose:

To amend regulations governing patients' rights to communication and visitation.

Text of proposed rule:

1. Part 21 of Title 14 NYCRR is repealed.

2. Subdivision (c) of Section 527.2 is amended, a new subdivision (d) is added, and subdivisions (d) and (e) are renumbered as (e) and (f) to read as follows:

(c) [Article 33] Section 33.02 of the Mental Hygiene Law establishes statutory rights of [mentally disabled persons. Section 33.02 of such law] persons with mental disabilities and requires the commissioner to publish regulations informing [patients] residents of facilities or programs operated or licensed by the Office of Mental Health of their rights under law.

(d) Section 33.05 of the Mental Hygiene Law provides that each patient or resident in a facility shall have the right to communicate freely and privately with persons outside the facility as frequently as he or she wishes, subject to regulations of the commissioner designed to assure the safety and welfare of patients and to avoid serious harassment to others.

(e) 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 decision-making 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.

[(e)] (f) 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 program inform patients about their rights, under State law, to express their preferences regarding health care decisions.

3. Subdivision (e) of Section 527.4 is amended to read as follows:

(e) Plans of treatment or services developed for persons who are non-English speaking, deaf, [or] hard of hearing, or are unable, for any reason, to read or write, shall identify any significant related impact on such persons' functioning and treatment, and identify associated recommendations for treatment, including any reasonable accommodations.

4. New Sections 527.10, 527.11, and 527.12 are added to this Part to read as follows:

§ 527.10 Visiting at facilities.

(a) Subject to the provisions of Section 527.12 of this Part, residents of facilities operated or licensed by the Office of Mental Health have a right to receive visitors at reasonable times, to have privacy when visited, to authorize those family members and other adults who will be given priority to visit, and to communicate freely with persons within or outside the facility.

(b) Visiting rights at facilities.

(1) Recognizing that, in general, having visitors and visiting outside of the facility is part of the recovery process which maintains ties with family and the rest of the community, all facilities shall establish visiting hours and policies which are designed to facilitate the exercise of the right to receive visitors. Such policies:

(i) must not be unduly onerous to residents;

(ii) must be as flexible as administratively feasible;

(iii) shall not require prior notification or request by either the resident or the visitor, except when such visits would interfere with the regularly scheduled therapeutic activities in which patients are engaged, or as provided in Section 527.12 of this Part;

(iv) should, in order to preserve the therapeutic environment of the facility, be tailored in a manner that facilitates visiting while avoiding interference with the regularly scheduled activities in which residents are engaged, such as school attendance, program participation, and mealtime, by ensuring that in individual cases where an accommodation can be made without compromising the clinical care of the resident or other residents, facilities shall make reasonable efforts to do so;

(v) shall require the establishment of regular visiting hours during every day and every evening of the week, provided, however, that facilities operated by the Office shall establish regular visiting hours based on the facility's security needs and the needs of the specific population served (i.e., adults, children, or persons residing in forensic or secure treatment facilities), their families, and the community, as well as all other requirements of this subdivision; and

(vi) with respect to facilities which serve minors eighteen years of age or under, may require prior authorization of visitors by the person or entity with legal authority to consent to treatment for such minor, if in the best clinical interests of the resident.

(2) Each facility shall establish a space where visitors may meet with residents in comfortable surroundings with a reasonable degree of privacy. Visitors should be encouraged to visit in the living, dining, and recreational areas with patients, as well as to visit outside the facility with the resident.

(3) In exceptional instances, it may be necessary to restrict a resident's visiting right. Such restriction can only be imposed in accordance with Section 527.12 of this Part.

527.11 Communicating freely with others within and outside the facility.

(a) Residents of facilities or programs operated or licensed by the Office of Mental Health have the right to communicate freely and privately with persons within and outside the facility, subject to the provisions of Section 527.12 of this Part.

(b) To assist in the exercise of this right, facilities shall provide residents with reasonable access to stationery and telephones to assist them in freely communicating with others outside the facility.

(c) Residents shall have full opportunity to communicate freely with clergy and with their legal representatives, and these communications shall not be restricted. With respect to other correspondence, there shall be no censorship or restriction of incoming or outgoing letters or packages, except in the following circumstances:

(1) To assure the safety and welfare of residents, facilities subject to this Part may institute policies governing possession of contraband. Letters or packages which are reasonably suspected to contain contraband or, in the case of facilities operated by the Office, otherwise implicate significant security or safety concerns, shall be processed in accordance with such facility policies.

(2) To assure the safety and welfare of residents and avoid harassment to others, any resident whose condition, in the opinion of the treatment team, warrants some selectivity, may have incoming and/or outgoing letters or packages not subject to a facility's contraband policy censored or restricted in accordance with Section 527.12 of this Part.

(d) With the exception of mail that is processed or restricted in accordance with subdivision (c) of this Section, incoming letters and packages should be delivered sealed and unopened to all residents, and all outgoing letters and packages shall be mailed in a like manner, provided, however, in an individual case where there exists an unanticipated, overriding compelling safety or security concern, the reasons why the letter or package was not delivered sealed or unopened to the resident, and a description of how the matter was handled (e.g., in consultation with the United States Postal Service, or other appropriate security intervention) should be appropriately documented in accordance with facility procedure.

527.12 Restriction of rights.

(a) A right set forth in Article 33 of the Mental Hygiene Law and this Part may be restricted within the resident's treatment plan by a written order signed by a physician stating the clinical justification for the restriction. The order imposing the restriction and a notation detailing the clinical justification therefor and the specific period of time in which the restriction shall be in effect must be entered into the resident's record. In no event may any right set forth in this section be restricted or limited as a punishment or for the convenience of staff.

(b) Any restriction on a right identified in this section shall be the least restrictive appropriate method for protecting the interest or interests involved.

(c) The treatment team or its designee shall discuss any restrictions of a right set forth in this section and the reason for such decision with the resident, and his or her family (if the resident does not object), and/or other authorized representative of the resident, and shall advise such persons of the resident's right to appeal this decision to the director of the facility. A notation that such persons were advised of the restriction, and the resident's right to appeal the decision, must be entered in the resident's record.

(d) In cases where a restriction is placed on incoming and/or outgoing mail in accordance with paragraph (2) of subdivision (c) of Section 527.11 of this Part, such mail may be withheld from the resident during the time the restriction is in place, or may be opened by a member of the treatment team in the presence of the resident. In no case may a staff member other than a member of the treatment team open such packages or letters, unless there exists an overriding compelling safety or security concern. In such cases, the reason why a treatment team member did not open a package or document, and a description of how the matter was handled (e.g., in consultation with the United States Postal Service, or other appropriate security intervention) must be appropriately documented in accordance with facility procedure.

(e) Appeals. Residents whose rights have been restricted in accordance with this Section shall be notified of their right to appeal such decision in accordance with Section 27.8 of this Title.

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

Joyce Donohue, Bureau of Policy, Regulation and Legislation, Office of Mental Health, 44 Holland Ave., 8th Fl., Albany, NY 12229, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory Authority: Section 7.09 of the Mental Hygiene Law grants 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/her jurisdiction.

Section 33.02 of the Mental Hygiene Law establishes statutory rights of persons with mental disabilities and residents of programs licensed or operated by the Office of Mental Health. Section 33.05 of the Mental Hygiene Law requires the commissioner to establish guidelines to ensure that patients or residents at facilities have full opportunity for conducting correspondence, have reasonable access to telephones, and have frequent and convenient opportunities to meet with visitors.

2. Legislative Objectives: Article 7 of the Mental Hygiene Law reflects the Commissioner's authority to establish regulations regarding mental health programs. Furthermore, the Legislature intended, through passage of Mental Hygiene Law Section 33.05, the Commissioner of OMH, to establish guidelines to reflect the therapeutic nature that receiving visitors generally has for residents and to ensure that receiving visitors is part of the normalization process which permits residents to maintain ties with the rest of the community. In this same section, the Legislature also recognized that the right to communicate freely and privately, in a hospital setting, must be balanced with the necessity of ensuring the safety and welfare of residents and to avoid serious harassment to others.

3. Needs and Benefits: Regulations were enacted in the 1970's at 14 NYCRR Part 21 to establish standards for communications and visits, which were applicable to both the Office of Mental Health and the Office of Mental Retardation and Developmental Disabilities. Subsequently, the Department of Mental Hygiene was split into autonomous offices in 1978. Each office established its own statutory framework in the Mental Hygiene Law, and later legislation expanded upon the rights of residents and the communication needs of residents.

The Office of Mental Retardation and Developmental Disabilities updated its regulations in 14 NYCRR Part 633, which superseded Part 21 since applicable provisions regarding resident visiting rights and communication needs were moved into this section. Similarly, the Office of Mental Health promulgated regulations setting forth the right of patients to communicate freely with visitors, and establishing rules governing communication needs, in 14 NYCRR Part 527.

However, OMH did not clarify that the provisions of Part 527 partially superseded Part 21, which has resulted in some unnecessary duplication and confusion, particularly since a number of provisions in Part 21 are outdated. As one example, security is obviously a greater concern post 9/11/01 than it was in the 1970's, when Part 21 was initially enacted. OMH is attempting to address security issues while not infringing on resident rights by providing that in cases where security is an overriding concern, packages may be opened by someone other than a treatment team member, with appropriate documentation. These amendments are therefore designed to specifically repeal Part 21, and to incorporate and update standards governing visiting and communication rights of residents in facilities under the jurisdiction of OMH, so that they are fully contained in 14 NYCRR Part 527.

It must be noted that substantially identical amendments were filed and adopted on June 20, 2006, and were in effect from July 5, 2006 until May 17, 2007. On that date, the amendments were deemed null and void in Orange County Court as a result of a lawsuit filed by the Mental Hygiene Legal Service, alleging that the final rule contained a “substantial” change as compared to the proposed rule, and a Revised Rulemaking should have been filed prior to final adoption (Hirschfeld v. Carpinello, Index No. 9034/2006). These amendments are thus intended to restore those regulations, which, prior to the decision overruling them on technical grounds, had been effective for almost one year.

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: This rule will have no impact on any paperwork requirements of affected entities.

7. Duplication: These regulatory amendments do not duplicate existing State or federal requirements.

8. Alternatives: The only alternative to the regulatory amendment which was considered was inaction. Inasmuch as the provisions of 14 NYCRR Part 21 are either outdated or duplicative of provisions found in Part 527, and that almost identical regulations have been in effect for almost one year, this 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.

Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

A Regulatory Flexibility Analysis for Small Businesses and Local Governments, and Rural Area Flexibility Analysis are not being submitted with this notice because the amended rules will not impose any adverse economic impact on small businesses or rural areas, nor will they impose any new reporting, record keeping or other compliance requirements on small businesses or local governments, or on public or private entities in rural areas. The amendments to the rule are designed to simply move and update existing requirements from 14 NYCRR Part 21, which is being repealed, to 14 NYCRR part 527. No new or additional requirements are being imposed on small businesses, local governments, or other public or private entities.

A Job Impact statement is not being submitted with this notice because it is evident from the subject matter of the amendments that they will have no impact on jobs and employment opportunities. This amendment essentially consists of a relocation, and updating, of existing regulatory requirements and, as such, as no impact on jobs and employment opportunities within the OMH system.