OMH-15-10-00009-P Mental Health Services - General Provisions

4/14/10 N.Y. St. Reg. OMH-15-10-00009-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 15

April 14, 2010

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. OMH-15-10-00009-P

Mental Health Services - General Provisions

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

Proposed Action:

This is a consensus rule making to amend Part 501 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 7.09 and 31.04

Subject:

Mental Health Services - General Provisions.

Purpose:

To add a definition to existing regulation that states OMH's acceptance of the use of electronic medical records.

Text of proposed rule:

Section 501.2 of Title 14 NYCRR is amended by adding a new subdivision (a) and renumbering subdivisions (b), (c), (d), and (e), respectively, as follows:

(a) Case record, clinical record, medical record, or patient record means clinical record as such term is defined in Section 33.16 of the Mental Hygiene Law, whether created or maintained in writing or electronically. All such records shall use accepted mechanisms for clinician signatures, be maintained in a secure manner, and be readily accessible to the Office upon request.

(b) Commissioner means the commissioner of the New York State Office of Mental Health.

[(d)](c) Mental illness means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.

[(e)](d) Minor means a person who has not attained the age of 18 years.

[(b)](e) Office means the New York State Office of Mental Health.

[(c)](f) Provider of services means a provider of services, as defined in section 1.03 of the Mental Hygiene Law, which is responsible for the operation of a program or network of programs. Such entity may be an individual, partnership, association, corporation, limited liability company, or public or private agency, other than an agency of the State, which provides services for persons with mental illness.

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

Joyce Donohue, 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.

Consensus Rule Making Determination

This rulemaking is filed as a Consensus rule on the grounds that it is non-controversial and conforms to non-discretionary statutory provisions. No person is likely to object to this rulemaking since it merely clarifies the Office's position regarding the use of electronic medical records which is in conformance with State and Federal law.

In 2000, the Federal "Electronic Records and Signatures in Commerce Act" was enacted into law to facilitate the use of electronic records and signatures in interstate or foreign commerce. One year earlier, in 1999, New York State had enacted the Electronic Signatures and Records Act (ESRA) through Chapter 57-A of the Consolidated Laws. In New York State, ESRA provides that an electronic signature shall have the same force and effect as a handwritten signature, unless there is a statutory provision to the contrary. Further, Executive Department regulations (Title 9 NYCRR) encourage the use of electronic signatures and records to facilitate both business in, as well as the business of, New York State. These regulations state, "ESRA recognizes the importance of technology to the State and a need to build the foundation for its acceptance, implementation and use by State agencies, local government, the private sector and citizens."

The rulemaking increases flexibility for providers of mental health services by supporting the use of electronic medical records and by clarifying that the definition of "case record, clinical record, medical record, or patient record" includes records created or maintained in writing or electronically. All such records must use accepted mechanisms for clinician signatures and shall be maintained in a secure manner. It is important to note that while the Office does support the use of electronic records and electronic signatures, it does not mandate their use.

Statutory Authority: Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of the Office of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his jurisdiction. Section 31.01 of the Mental Hygiene Law charges the Commissioner of the Office of Mental Health with the responsibility to promulgate rules and regulations requiring the development of evaluation criteria and methods, including, but not limited to: uniform definitions of services for persons with mental disabilities; uniform financial and clinical reporting procedures; requirements for the generation and maintenance of uniform data for all individuals receiving services from any provider of services; uniform criteria for evaluating categories of need; and uniform standards for all comparable services and programs.

Job Impact Statement

A Job Impact Statement is not submitted with this notice because this consensus rule merely adds a definition to existing regulation that complies with the State Electronic Signatures and Records Act. There will be no impact on jobs and employment opportunities as a result of this rulemaking.