To amend regulations governing patients' rights to communication and visitation.
Text or summary was published
in the notice of proposed rule making, I.D. No. OMH-51-07-00004-P, Issue of December 19, 2007.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Joyce Donohue, Office of Mental Health, 44 Holland Ave., 8th Fl., Albany, NY 12229, (518) 474-1331, e-mail: cocbjdd@omh.state.ny.us
Assessment of Public Comment
1. Issue:
The proposed regulation permits individual facilities to institute policies governing possession of contraband. This appears to be an inappropriate delegation of the the duty to promulgate regulations with respect to the right to communicate freely and privately, as set forth in Mental Hygiene Law Section 33.05.
Response:
This comment represents a misreading the proposed regulation. Section 33.05 of the Mental Hygiene Law charges the Commissioner with the responsibility of promulgating regulations which “establish guidelines to insure that patients at facilities have full opportunity for conducting correspondence, have reasonable access to telephones, and have frequent and convenient opportunities to meet with visitors.” The regulations set forth in this Part are intended to fulfill this responsibility. The provision at issue does not represent a delegation of the authority to promulgate regulations governing communication or visitation with persons outside the facility. Instead, it maintains the current ability of facilities to properly exercise their administrative authority to preserve a safe and therapeutic environment for their patients, staff, and visitors, through the development of contraband policies intended to prevent the introduction of dangerous items within a facility.
2. Issue:
Proposed 14 NYCRR § 527.10(b)(1)(vi), which permits facilities to give persons with legal authority to consent to treatment for minors, to give prior authorization of visitors, serves as an additional consent which further erodes the rights of minors admitted to facilities.
Response: OMH recognizes the critical role of involved parents and guardians in the
treatment process, and remains committed to keeping involved parents and guardians notified and informed of matters involving their child's care and treatment. This provision permits, but does not require, parents or guardians to authorize certain visitors, if in the best clinical interests of the child. For example, a parent could request that visits not be permitted with a person who is known to have sold illegal drugs to his/her child, or who has abused his/her child. OMH believes this provision strikes the proper balance between enabling a child to exercise his/her visitation rights, but with appropriate parental involvement.
3. Issue:
With respect to communication methods, some individuals may be able to communicate via the computer and email and this form of communication should be considered in addition to the communication methods of communication such as writing letters.
Response:
This comment appears to go beyond the scope of the proposed regulations, which neither encourage nor discourage a particular method of communication. OMH agrees that as technology advances, references to paper correspondence are becoming dated; however such references must be maintained as a minimum standard. To the extent facilities have available resources and appropriate, HIPAA compliant security technology (where applicable) to facilitate electronic communication, they are not prevented by these regulations from proceeding in that direction.
4. Issue:
Proposed 14 NYCRR § 527.10(b)(1)(v), which requires State operated facilities to establish regular visiting hours based on the facility's security needs and the needs of the specific population served, implies that liberal visitation varies in importance depending on types of populations served.
Response:
The proposed regulations make it clear that 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. As such, the regulations require all facilities to establish visiting hours and policies which are designed to facilitate the exercise of the right to receive visitors. The intent of the provision at issue is to maximize the ability of facilities to establish visiting hours that comport with the needs of the population served, e.g., children's facilities may need to establish visiting hours that take into consideration times when children are scheduled to be in school; visitation schedules at secure forensic facilities may need to be concentrated around times when sufficient staff are available to provide additional security, etc.
