OMH-12-13-00018-EP Transfer of Involuntary Patients to Authorized Secure Facilities

3/20/13 N.Y. St. Reg. OMH-12-13-00018-EP

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 12

March 20, 2013

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. OMH-12-13-00018-EP

Filing No. 246

Filing Date. Mar. 05, 2013

Effective Date. Mar. 05, 2013

Transfer of Involuntary Patients to Authorized Secure Facilities

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

Proposed Action:

Amendment of Part 57 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 7.09, 29.01, 29.11 and 31.04

Finding of necessity for emergency rule:

Preservation of public health and public safety.

Specific reasons underlying the finding of necessity:

The rule adds provisions to allow for the transfer of involuntary patients to regional forensic units operated by the Office of Mental Health. Patients whose behavior is such as to raise the likelihood of their causing harm to others cannot be given the care and treatment they require at other hospitals operated by the Office since, for the protection of other patients and staff of such hospitals, they must be kept in closed wards while in a civil facility. Current regulations provide for the transfer of involuntary patients to Mid-Hudson Forensic Psychiatric Center and Kirby Forensic Psychiatric Center. Due to increasing demands on the system, Mid-Hudson and Kirby Forensic Psychiatric Centers have been consistently under pressure to admit patients, placing a strain on their capacity. The emergency rule will enable the transfer of these patients to not only the two Office-operated forensic hospitals, but to the maximum security forensic units located at the Rochester Regional Forensic Unit and Northeast Regional Forensic Unit. These maximum security forensic units have similar security services as found at Mid-Hudson and Kirby; therefore, it is feasible to utilize these forensic units to meet the need for the Part 57 beds. As this is a health and safety issue for patients and staff, the rule is filed appropriately as an Emergency Adoption.

Subject:

Transfer of Involuntary Patients to Authorized Secure Facilities.

Purpose:

To allow for the transfer of an involuntary patient from an OMH hospital to one of its regional forensic units.

Text of emergency/proposed rule:

1. Section 57.1 of Title 14 NYCRR is amended to read as follows:

(a) The forensic mental health system offers care to New Yorkers pursuant to Mental Hygiene, Criminal Procedure, and Correction Laws. The Office ensures that mental health services are available to members of this population at multiple geographical points throughout the forensic system. In addition to the Mid-Hudson Forensic Psychiatric Center and Kirby Forensic Psychiatric Center, the Office operates two maximum security regional forensic units: the Rochester Regional Forensic Unit, located on the grounds of the Rochester Psychiatric Center, and the Northeast Regional Forensic Unit, located at Central New York Psychiatric Center.

(b) [The Mid-Hudson Psychiatric Center and Kirby Forensic Psychiatric Center are] These forensic facilities [in the Office of Mental Health] and units [which] offer a range and variety of programs and services for the care, treatment, and rehabilitation of [the mentally ill of the] persons age [of] 16 and over with mental illness, comparable with those offered at other hospitals in the Office of Mental Health. In addition, they have the staff and physical surroundings to enable them to offer such programs and services to patients requiring closer supervision than can be given at other hospitals.

(c) Patients whose behavior is such as to raise the likelihood of their causing harm to others cannot be given the care and treatment they require at such other hospitals operated by the Office of Mental Health since, for the protection of other patients and staff of such hospitals, they must be kept in closed wards [and even] while in [seclusion] a civil facility.

(d) The Mid-Hudson Forensic Psychiatric Center, [and] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit and Northeast Regional Forensic Unit [with] have specially trained staff and a secure perimeter. As such, these settings [security] permit freer movement, within [institution] facility grounds, of [such] patients who pose a risk of harm to others, as well as offer them an opportunity for [and the possibility of] rehabilitation, recreation, and therapies which, because of their need for close supervision, would not be available for them at the other hospitals.

2. The heading and subdivisions (a) and (b) of Section 57.2 of Title 14 NYCRR are amended to read as follows:

Procedure for transfer to Mid-Hudson Psychiatric Center, [and] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit and Northeast Regional Forensic Unit

(a) Application. The director of a hospital [in the department] operated by the Office of Mental Health may make application in writing to the commissioner or his designee for transfer of an involuntary patient at his facility to the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit. Such application must be supported by a statement of facts showing that:

(1) there is a substantial risk that such patient may cause physical harm to other persons, as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.

(2) reasonable efforts at treatment have been made without eliminating such substantial risk of physical harm to others.

(3) the patient needs the close supervision provided at the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit. A copy of the application together with a copy of this Part shall be given to the patient, to the nearest relative of the patient, if there be known to the director, and to the Mental Hygiene Legal Service. Proof of service of such copy and proof of service of any paper required by this Part shall be placed in the patient's record.

(b) Notice of commissioner's decision. If the commissioner or his designee finds that the application sets forth facts justifying the transfer of the patient to the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit, he shall so notify the director who made the application. Such director shall thereupon give notice of the proposed transfer of such patient to the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit, to the persons served with a copy of the application. The notice shall have attached thereto a copy of the determination of the commissioner or his designee and shall state that such transfer will be effected unless, within 48 hours of service of the notices, exclusive of Saturdays, Sundays, and holidays, the patient, or anyone on his behalf, files written objection to the transfer with such director.

3. Section 57.3 of Title 14 NYCRR is amended to read as follows:

[(1)] (a) An application may be made for the immediate transfer of a patient to Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit [may request immediate transfer thereto]. In such case, the application shall set forth all the facts required by section 57.2 of this Part and, in addition shall set forth facts showing that the hospital where he is being held cannot manage the patient and that a delay in the transfer would seriously jeopardize the safety of the patient, other patients at the facility, or employees thereof. A copy of the application shall be served upon the nearest relative of the patient, if there be any known to the director, and upon the Mental Hygiene Legal Service. If the commissioner or his designee approves the application, he shall order, within 48 hours of receipt of the application the immediate transfer of the patient. The order shall contain a provision that the transfer is conditional upon full review by the commissioner or his designee. A copy of the order shall be served upon the patient, the Mental Hygiene Legal Service, and any relative served with a copy of the application.

[(2)] (b) Within 24 hours of the patient's arrival at Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit, the director of the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Psychiatric Center or Central New York Psychiatric Center shall serve notice upon the patient, the nearest relative of the patient, if there be any known to him, and upon the Mental Hygiene Legal Service of the patient's rights to object to the transfer. The procedure set forth in section 57.2 of this Part shall apply. If the decision of the commissioner or his designee is to uphold the transfer, he shall issue an order confirming the transfer. If the decision is to the contrary, he shall rescind the transfer.

4. Section 57.4 of Title 14 NYCRR is amended to read as follows:

(a) An involuntary patient transferred to Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit shall be retained at such hospital only as long as his condition requires retention at such hospital in accordance with the criteria set forth in section 57.2(a) of this Part.

(b) The director of Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Psychiatric Center or Central New York Psychiatric Center shall comply with the provisions of article 31 of the Mental Hygiene Law and apply, in accordance with such article, for the required periodic orders authorizing retention of involuntary patients. In addition, such director shall periodically review the need for retention in the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit of each involuntary patient and shall file a report with the commissioner or his designee for each such patient at intervals of not more than six months setting forth reasons why the patient needs continued retention at such facility. A copy of such report shall be served on the patient and the Mental Hygiene Legal Service.

(c) Involuntary patients who no longer need retention in the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit but who still require involuntary care and treatment shall be transferred to another hospital in the Office of Mental Health.

5. Section 57.5 of Title 14 NYCRR is amended to read as follows:

Each involuntary patient previously transferred to the Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit who is a patient therein on the effective date of this Part, shall be served within one month of such date with a copy of this Part, a statement setting forth reasons why such patient needs continued retention therein, and a notice of the patient's rights to object to further retention at such facility. A copy of such statement and notice shall be served upon the nearest relative of the patient, if there be any known to the director, and upon the Mental Hygiene Legal Service. If there is no written objection made by or on behalf of the patient, the patient may be retained at Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit subject to the provisions of section 57.4 of this Part. If there is an objection, the procedure set forth in sections 57.2 and 57.3 of this Part shall apply.

6. Section 57.6 of Title 14 NYCRR is amended to read as follows:

Nothing in this Part shall affect any right of the patient or someone acting on his behalf to initiate a proceeding allowed to him by law before a court of competent jurisdiction to challenge his transfer to or retention at Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit.

7. Section 57.7 of Title 14 NYCRR is amended to read as follows:

The commissioner or his designee may, when supported by documentation that retention at Mid-Hudson Forensic Psychiatric Center, [or] Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit is no longer appropriate, authorize the return of a patient to the sending facility or other appropriate facility.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire June 2, 2013.

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]

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: 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.

Section 29.11 of the Mental Hygiene Law authorizes the Commissioner to order or approve the transfer of a patient from one facility, as defined in section 1.03 of the Mental Hygiene Law, to another appropriate facility.

Section 29.01 of the Mental Hygiene Law grants the Commissioner the authority to adopt regulations governing admissions to hospitals and to prescribe and furnish forms for use in procedures for admission.

2. Legislative Objectives: Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner’s authority to establish regulations regarding mental health programs. The forensic mental health system offers care to New Yorkers pursuant to Mental Hygiene, Criminal Procedure, and Correction Laws. The Office of Mental Health (Office) is charged with the responsibility to ensure that mental health services are available to members of this population at multiple geographical points throughout the forensic system. Section 29.11 of the Mental Hygiene Law authorizes the Commissioner to order or approve the transfer of a patient from one facility, as defined in section 1.03 of the Mental Hygiene Law, to another appropriate facility. Existing regulations found at 14 NYCRR Part 57 provide for the transfer of an involuntary patient from a hospital of the Office to one of the Office’s forensic psychiatric centers. The proposed regulation establishes provisions to allow for the transfer of an involuntary patient from a hospital of the Office to one of its regional forensic units.

3. Needs and Benefits: The Office operates two forensic psychiatric centers (Mid-Hudson Forensic Psychiatric Center and Kirby Forensic Psychiatric Center) and two maximum security regional forensic units (Rochester Regional Forensic Unit, located on the grounds of Rochester Psychiatric Center and Northeast Regional Forensic Unit, located at Central New York Psychiatric Center). These facilities and forensic units offer a range and variety of programs and services for the care, treatment, and rehabilitation of persons age 16 and over with mental illness, comparable with those offered at other hospitals of the Office, but they have the staff and physical surroundings to enable them to offer such programs and services to patients requiring closer supervision than can be given at other hospitals.

As noted above, the Office is charged with the responsibility of ensuring that mental health services are available to members of this population at multiple geographical points throughout the forensic system. Both Mid-Hudson Forensic Psychiatric Center and Kirby Forensic Psychiatric Center serve a large number of patients and frequently operate at full capacity. The patients at these facilities often exhibit behaviors that raise the likelihood of their causing harm to others. The Rochester Regional Forensic Unit (RRFU) and the Northeast Regional Forensic Unit (NERFU) are maximum security units designed to provide care and treatment to individuals with mental illness in a secure environment. The amendments to 14 NYCRR Part 57 will enable the transfer of individuals needing these services to the RRFU or NERFU.

Due to increasing demands on the system, Kirby and Mid-Hudson Forensic Psychiatric Centers have been consistently under pressure to admit patients, placing a strain on their capacity. This has implications throughout the system, because it reduces the ability of the State to transfer individuals from civil facilities to a secure setting under Part 57. Since Kirby and Mid-Hudson have similar security and services as the Office's other forensic facilities (RRFU and NERFU), it is feasible to utilize these other facilities to meet the need for Part 57 beds.

In addition, expanding utilization of additional forensic facilities such as RRFU and NERFU will increase the probability that upstate involuntary patients who are too violent to remain in a civil hospital could be transferred to a hospital that is closer to their home and/or originating hospital. Geographic proximity, whenever possible, may also help facilitate continuity of care and support from a patient’s support network. Furthermore, geographic proximity will also decrease the transportation burden for the patient and the Office.

4. Costs:

(a) cost to State government: These regulatory amendments will not result in any additional costs to State government. If patients are able to be transferred to facilities that are closer to their originating hospital, it is expected that there will be a transportation cost savings for the Office.

(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: No increased paperwork is anticipated as a result of this rule making.

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

8. Alternatives: The only alternative to the regulatory amendment that was considered was inaction. Since the Office’s regional forensic units can appropriately serve involuntary patients in a secure environment, thereby mitigating the potential for Mid-Hudson Forensic Psychiatric Center and Kirby Forensic Psychiatric Center to be over capacity, that 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 upon adoption.

Regulatory Flexibility Analysis

The amendments to 14 NYCRR Part 57 are needed to allow for the transfer of involuntary patients from a hospital of the Office of Mental Health (Office) to the regional forensic units operated by the Office (Rochester Regional Forensic Unit and Northeast Regional Forensic Unit). As there will be no adverse economic impact on small businesses or local governments as a result of these amendments, a regulatory flexibility analysis is not submitted with this notice.

Rural Area Flexibility Analysis

The amendments to Part 57 of Title 14 NYCRR serve to allow for the transfer of involuntary patients from a hospital of the Office of Mental Health (Office) to the regional forensic units operated by the Office (Rochester Regional Forensic Unit and Northeast Regional Forensic Unit). The proposed rule will not impose any adverse economic impact on rural areas; therefore, a Rural Area Flexibility Analysis is not submitted with this notice.

Job Impact Statement

A Job Impact Statement is not submitted with this notice because it is evident from the subject matter that there will be no adverse impact on jobs and employment opportunities as a result of these amendments. The proposed rule serves to allow for the transfer of involuntary patients from a hospital of the Office of Mental Health (Office) to the regional forensic units operated by the Office (Rochester Regional Forensic Unit and Northeast Regional Forensic Unit).