OMH-39-15-00002-A Implementation of the Protection of People with Special Needs Act and Reforms to Incident Management

12/9/15 N.Y. St. Reg. OMH-39-15-00002-A

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 49

December 09, 2015

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

NOTICE OF ADOPTION

 

I.D No. OMH-39-15-00002-A

Filing No. 1016

Filing Date. Nov. 23, 2015

Effective Date. Dec. 09, 2015

Implementation of the Protection of People with Special Needs Act and Reforms to Incident Management

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

Action taken:

Amendment of Parts 501 and 550; repeal of Part 524; and addition of new Part 524 to Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 7.07, 7.09 and 31.04

Subject:

Implementation of the Protection of People with Special Needs Act and reforms to incident management.

Purpose:

To enhance protections for people with mental illness served in the OMH system.

Substance of final rule:

The Office of Mental Health (OMH) is adopting as final the repeal of 14 NYCRR Part 524 (Incident Management Programs) and addition of a new 14 NYCRR Part 524 (Incident Management Programs), as well as the amendments to 14 NYCRR Part 501 (Mental Health Services – General Provisions) and Part 550 (Criminal History Record Checks). The regulations are intended to conform OMH’s regulations to Chapter 501 of the Laws of 2012 (Protection of People with Special Needs Act or PPSNA). Specifically, the amendments:

- Amend 14 NYCRR Part 501 by adding a new Subdivision (a) to Section 501.5, “Obsolete or Outdated References,” that replaces any reference throughout OMH regulations to the Commission on Quality of Care and Advocacy for Persons with Disabilities with a reference to the Justice Center for the Protection of People with Special Needs.

- Repeal and revise 14 NYCRR Part 524 (Incident Management) to incorporate categories of “reportable incidents” as established by the PPSNA and includes enhanced provisions regarding incident investigations. The amendments make changes related to definitions, reporting, investigation, notification and committee review of events and situations that occur in providers of mental health services licensed or operated by OMH. It is OMH’s expectation that implementation of these amendments will enhance safeguards for persons with mental illness, which, in turn, will allow individuals to focus on their recovery. The amendments also require distribution of the Code of Conduct, developed by the Justice Center, to all employees. Providers must maintain signed documentation from such employees, indicating that they have received, and understand, the Code.

- Revise14 NYCRR Part 550 to facilitate and implement the consolidation of the criminal background check function in the Justice Center, and to make other conforming changes to the criminal background check function established by the PPSNA.

OMH has made minor, non-substantive changes to the final adopted rule. They are as follows:

- Added clarifying language to Section 524.7(b) to ensure that falls are to be reported as significant incidents only when they occur in inpatient or residential settings. This is already within the definition of “Falls”, but staff found it confusing when paired with the “or under staff supervision” language found there.

- Added language to Section 524.8(g) to provide consistency with provisions in OASAS regulations with respect to allegations of abuse or neglect which appear to be impossible or incredible.

- Streamlined redundant language in Section 524.9(c)(1) regarding investigations.

- Removed the phrase “45 days from completion” from Section 524.13(b)(4), which was outdated and added clarifying language to reflect the current practice of 45 days from acceptance of the report by the Justice Center.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 524.7(b), 524.8(g), 524.9(c)(1) and 524.13(b)(4).

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, [phone], email: [e-mail]

Revised Regulatory Impact Statement

A revised Regulatory Impact Statement is not included with this notice as the changes made to the final adopted rule do not necessitate a change to this document. The changes are non-substantive and serve to provide clarification and improve readability.

Revised Regulatory Flexibility Analysis

A revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not included with this notice as the changes made to the final adopted rule do not necessitate a change to this document. The changes are non-substantive and serve to provide clarification and improve readability. The amendments to 14 NYCRR Parts 501, 524 and 550 will not have an adverse economic impact upon small businesses or local governments.

Revised Rural Area Flexibility Analysis

A revised Rural Area Flexibility Analysis is not included with this notice as the changes made to the final adopted rule do not necessitate a change to this document. The changes are non-substantive and serve to provide clarification and improve readability. The amendments to 14 NYCRR Parts 501, 524 and 550 will not have an adverse economic impact upon rural areas.

Revised Job Impact Statement

A revised Job Impact Statement is not included with this notice as the changes made to the final adopted rule do not necessitate a change to this document. The changes are non-substantive and serve to provide clarification and improve readability.

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment

The agency received comments from a provider and a trade organization in response to OMH’s proposed rule making amending 14 NYCRR Parts 501, 524 and 550 – Implementation of the Protection of People with Special Needs Act and Reforms to Incident Management.

The comments are addressed below:

Comment: The terms Employee or Staff are defined in Section 524.4(c) as an administrator, employee, consultant, volunteer or student affiliated with a mental health provider as such term is defined in this Section, or a person employed by an entity which has a contract with such a program or provider, but shall not include employees or volunteers who are also patients of the mental health provider. The commenter stated that there are services where consumers are expected to be an integral part of the program operation with substantial contact with the program clients, such as the Peer Support Specialist. The commenter sought confirmation that these individuals would not be included as employees if they also receive services from the agency.

Response: This comment does not require a change to the regulations and will be addressed in guidance for providers.

Comment: The term Neglect in Section 524.5(n) states… (1) failure to provide supervision, including lack of proper supervision that results in conduct between persons receiving services that would constitute abuse if committed by a custodian.” In most Treatment Apartments for Adults under Part 595 of 14 NYCRR, there is no staff supervision. Staff visit to provide psychiatric rehabilitation services. Provider is unclear how an interaction between roommates would be considered neglect by staff and seeks clarification.

Response: This definition represents the statutory definition of Neglect in Social Services Law Section 488. Clarification will be provided in guidance for providers.

Comment: Paragraphs (1) through (7) in Section 524.14(a) Special Investigations all reference inpatient programs. Provider requested clarification whether this pertains only to inpatient (in the hospital) or whether this includes residents of OMH-licensed residential programs.

Response: Clarification will be provided in guidance for providers.

Comment: A trade organization stated that OMH should take into consideration any unintended adverse consequences that may arise as a result of incorporating the Justice Center’s regulations and guidelines into OMH’s own regulations. The commenter stated it is supportive of the Justice Center’s mission but has concerns regarding the agency’s operations and its impact on providers. Imposing additional burdens on providers that are cumbersome, and in many cases, still ill-defined, would not help achieve the Justice Center’s goal.

Response: This comment does not require a change to the regulations.

Comment: The proposed changes to the incident category definitions in Section 524.5 state that “nothing contained herein shall be construed as restricting the discretion of the Justice Center in categorizing incident reports.” The commenter’s hospital members have advised that they have experienced problems with receiving conflicting information from the Justice Center and OMH regarding incident categories. The commenter is concerned with this proposed provision, as it appears to give the Justice Center the flexibility to categorize incidents as abuse and/or neglect, even if the incident does not fall into the definitions of abuse or neglect in Part 524.

Response: This comment does not require a change to the regulations. OMH will continue to work with the Justice Center to resolve identified issues and concerns.

Comment: The trade organization expressed concern that the regulations do not sufficiently ease the numerous duplicative mandated reporting requirements that have been imposed by the Justice Center. Proposed changes in Section 524.8(e) still require multiple mandated reporters to submit reports concerning the same incident. In addition, it imposes an added burden on providers, as it requires providers “to establish written protocols to ensure reports involving multiple mandated reporters are properly made and documented.”

Response: This comment does not require a change to the regulations. OMH will continue to work with the Justice Center to resolve identified issues and concerns.

Comment: The commenter stated that OMH should work with the Justice Center to eliminate the need for multiple reports regarding the same incident. OMH should eliminate the requirement that providers establish protocols for reports involving multiple mandated reporters, and instead have OMH develop those protocols.

Response: This comment does not require a change to the regulations. OMH will continue to work with the Justice Center to resolve identified issues and concerns.

Comment: Section 524.8(f) states that OMH “shall develop protocols in consultation with the Justice Center to assist providers in appropriately and therapeutically responding in circumstances where patients have a demonstrated pattern of frequently reporting allegations of abuse or neglect that are not reasonably reliable (i.e., there is no possibility that an allegation is true).” The commenter supports efforts to streamline processes related to the Justice Center in a way that is mindful of current treatment, and believes that OMH should continue to look at this area, including ways to eliminate the multiple false reports made through the Justice Center’s reporting system.

Response: This comment does not require a change to the regulations. OMH will continue to work with the Justice Center to resolve identified issues and concerns.

Comment: The commenter stated that OMH should more closely align its regulation with the proposed amendments to 14 NYCRR 836 set forth by the New York State Office of Alcoholism and Substance Abuse Services (OASAS). Section 836.6(g) permits providers to delay discovery and immediate reporting for up to 24 hours to conduct a preliminary review of an allegation of abuse or neglect when the person making the allegation has a documented history of making false reports or the person has a documented behavioral or psychological condition that would tend to cause the person to make a false report and no other person has come forward as a witness to such allegation. The commenter believes that OMH should adopt a similar type of delay in reporting to address the possibility of a false allegation.

Response: The substance of this language was intended to be in the protocols developed by OMH in consultation with the Justice Center. However, clarifying language similar to 14 NYCRR Section 836 has been added in Section 524.8(g) to make OMH regulations consistent with those of OASAS.

Comment: Section 524.9(c)(1) states that for investigations conducted by OMH and mental health providers all such “investigations and inspections of clinical records shall be made by persons competent to conduct such investigations and inspections.” This provision is not made applicable to investigations done by the Justice Center, nor to its investigators. The commenter stated that OMH should require the same such competency of Justice Center investigators as it does for OMH investigators.

Response: This comment does not require a change in regulations. It reflects a statutory requirement in Mental Hygiene Law Section 31.09.

Comment: Section 524.9(c)(4) requires providers immediately to begin conducting any assessment or review necessary once the provider is made aware of a report to the Justice Center (or when a patient death has occurred). This provision prohibits the provider from taking any statements from witnesses to the incident – only the designated investigating entity may do so. The commenter believes this is counterproductive as it hampers the provider’s ability to conduct an assessment or review, and that OMH should eliminate this prohibition.

Response: OMH will continue to work with the Justice Center to resolve identified issues and concerns.

Comment: The proposed changes to the incident category definitions in § 524.5 state that “nothing contained herein shall be construed as restricting the discretion of the Justice Center in categorizing incident reports.” The commenter’s hospital members have advised that they have had problems with receiving conflicting information from the Justice Center and OMH regarding incident categories. The commenter is concerned with this proposed provision because it appears to give the Justice Center the flexibility to categorize incidents as abuse and/or neglect, even if the incident does not fall into the definitions of abuse or neglect in Part 524.

Response: This comment does not require a change to the regulations. OMH will continue to work with the Justice Center to resolve identified issues and concerns.