OMH-19-13-00004-P Operation of Residential Treatment Facilities for Children and Youth

5/8/13 N.Y. St. Reg. OMH-19-13-00004-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 19

May 08, 2013

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. OMH-19-13-00004-P

Operation of Residential Treatment Facilities for Children and Youth

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

Proposed Action:

Amendment of Part 584 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 7.09, 31.04 and 31.26

Subject:

Operation of Residential Treatment Facilities for Children and Youth.

Purpose:

Add fire safety and smoking provisions; update information regarding facility construction and design; correct minor errors.

Text of proposed rule:

1. Subdivisions (a) and (d) of Section 584.2 of Title 14 NYCRR are amended to read as follows:

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his/her jurisdiction and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for [the mentally ill] persons with mental illness, pursuant to an operating certificate.

(d) Sections 31.05, 31.07, 31.09, 31.11 and 31.19 of the Mental Hygiene Law authorize the commissioner or his or her representative to examine and inspect such facilities to determine their suitability and operation. Sections [31.15] 31.16 and 31.17 authorize the commissioner to suspend, revoke or limit any operating certificate.

2. Subdivision (b) of Section 584.3 of Title 14 NYCRR is amended to read as follows:

(b) These regulations do not apply to hospitals operated by the Office of Mental Health, or to hospitals issued an operating certificate by the Office of Mental Health pursuant to Part [82]582 of this Title.

3. Section 584.19 of Title 14 NYCRR is amended to read as follows:

584.19 Premises.

The following standards shall apply to the physical plant or physical facilities of a residential treatment facility:

(a) [As used in this Part, physical plant or physical facilities of a residential treatment facility shall meet the standards set forth in Part 77 and Part 78 of this Title] Construction standards.

(1) Facilities shall be and remain in compliance with applicable sections of the 2010 edition of the Guidelines for Design and Construction of Health Care Facilities published by the Facility Guidelines Institute with assistance from the United States Department of Health and Human Services, provided, however, that this provision shall apply only to facilities which undertake construction or major renovations on or after the effective date of this paragraph. Facilities which have been constructed or have completed major renovations prior to that date in accordance with Part 77 of this Title shall be deemed to be in compliance with this paragraph.

(2) The design of the facility shall meet the requirements of the applicable sections of the Americans with Disabilities Act and the ADA Standards for Accessible Design and implementing regulations found at 28 CFR Parts 35 and 36.

(3) Waivers of up to [25] 10 percent of the square footage for bedroom space will be considered by the Office of Mental Health upon application from the agency.

(b) [The following standards shall apply to the physical plant or physical facilities of a residential treatment facility:] Fire safety.

(1) All buildings containing sleeping quarters for children shall be protected by a fire detection system or a sprinkler system installed throughout. All buildings used by children, but not containing sleeping quarters for them, shall be protected throughout by a sprinkler system, fire detection system, or manually operated fire alarm system. All areas of high fire hazard in all buildings used by children, whether or not they contain sleeping quarters for them, shall be protected by a sprinkler system and be separated from other areas by substantial, fire-resistant construction.

(2) All fire protection systems and equipment shall be installed according to recommendations of the National Fire Protection Association, and shall be inspected at least quarterly by a person who is expert in the installation, operation and inspection of such systems and equipment. A record of these inspections shall be kept by the [institution] facility. Facilities shall immediately correct any deficiency noted during inspection and testing.

(3) Each residential treatment facility shall request an annual inspection of each building used by children and its fire protection equipment by local fire authorities and/or the residential treatment facility's fire and casualty insurance carrier, who shall be requested to give the [institution] facility a written report of their findings. This report shall be kept on file on the premises until replaced by the next annual report of inspection. The residential treatment facility shall be responsible for correcting any fire hazards called to its attention throughout such inspection, and for keeping a written record on file of the action taken and when.

(4) Fire safety training. Facilities shall provide fire safety training to all staff. Newly hired staff shall be trained upon hiring and existing staff trained at least annually. Fire safety training shall include, but not be limited to:

(i) fire prevention;

(ii) discovering a fire;

(iii) operating the fire alarm system;

(iv) use of firefighting equipment; and

(v) building evacuation including fire drill protocols which identify staff roles.

(5) Fire drills. On a quarterly basis, facilities shall conduct fire drills in each building that houses patients. At least 50 percent of such drills must be unannounced.

(i) For each quarter, each such building must have a minimum of one practice fire drill per shift.

(ii) Facilities must direct all staff members on all shifts to participate in fire drills.

(iii) Drills shall be scheduled at varying times during a shift.

(iv) Use of alternative exits shall be practiced during fire drills.

(v) Whenever practicable, drills shall involve the actual evacuation of patients to an assembly point as specified in the evacuation plan. Consistent with the Life Safety Code standards, in larger facilities that are subdivided into separate smoke compartments to limit the spread of fire and smoke and move patients without leaving the building or changing floors, evacuation may include the relocation of patients to such compartments.

(vi) Properly documented actual or false alarms may be used for up to 50 percent of required drills for each shift, if all elements of the facility’s fire plan were implemented.

(vii) Facilities must document and maintain records regarding fire drill performance which include an evaluation of the results of each fire drill, any corrective action that may be required, and completion of steps taken to achieve such corrective action.

(c) [Each living unit shall provide for the comfort and privacy of the residents and shall be limited in size to 14 residents.] Prohibited items.

(1) The following items are prohibited from use within the structure:

(i) devices for heating, cooking, or lighting which use kerosene, gasoline, wood, or alcohol;

(ii) portable electric hot plates; and

(iii) barbeque grills. The use of barbeque grills is permissible when used outside of buildings but not within 30 feet of any structure including overhangs, canopies or awnings.

(2) The use of portable space heating devices is prohibited in patient sleeping and treatment areas of the facility, as well as in the facility administration offices. Use of a portable space heating device in any other building on the grounds of a facility shall be in accordance with guidelines of the Office, provided that:

(i) the unit has an Underwriters Laboratories (UL) certification mark;

(ii) the unit is thermostat-controlled and has a tip-over cutoff device;

(iii) the unit is plugged directly into a wall receptacle (no extension cords);

(iv) combustible materials are not stored around or near the unit;

(v) at least a three-foot clearance around the unit is maintained; and

(vi) the unit is not placed underneath a desk, furniture or other combustible items.

(d) Smoking. Facilities must not permit smoking within any buildings on the grounds of the facility. If smoking is permitted on the grounds of the facility, it shall be contained to a specific location(s) equipped with an approved non-combustible ash receptacle. Smoking shall not be permitted within 30 feet of any building structure, including overhangs, canopies or awnings.

[(d)](e) Medication storage. If medications are stored on the premises of the residential treatment facility, the residential treatment facility shall provide for controlled access maintenance of supplies in accordance with all applicable Federal and State laws and regulations.

(1) There shall be a single medication storage area within a single unit of the residential treatment facility.

(2) Medication shall be stored in a sturdy metal or sturdy wooden cabinet without glazing which shall be locked except when medication is needed. Controlled substances shall be stored in double-locked cabinets[.] as follows:

(i) Schedule I, II, III and IV controlled substances shall be kept in stationary, double-locked cabinets. Both inner and outer cabinets shall have key-locked doors with separate keys. Spring locks or combination dial locks are not acceptable.

(ii) Schedule V controlled substances shall be stored in a stationary, secure, locked cabinet of substantial construction.

(3) Refrigerators used for storage of medication shall not be used for the storage of food or beverages unless the medication is stored in separate locked compartment within the refrigerator.

[(e)](f) Each living unit shall provide for the comfort and privacy of the residents and shall be limited in size to 14 residents. The premises shall be reasonably maintained to ensure access to services by all residents.

Text of proposed 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, and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for persons diagnosed with mental illness, pursuant to an operating certificate.

Section 31.26 of the Mental Hygiene Law provides for the establishment of the subclass of hospitals known as residential treatment facilities for children and youth, which provide active treatment under the direction of a physician for individuals who are under 21 years of age.

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 New York State Clean Indoor Air Act (Public Health Law, Article 13-E) prohibits smoking in virtually all workplaces, including residential health-care facilities, unless separately designated smoking areas for adult patients are provided. The proposed rule establishes smoking and fire safety provisions for residential treatment facilities for children and youth licensed by the Office of Mental Health (Office), thereby furthering the legislative policy of providing high quality mental health services to individuals with mental illness in a safe and secure environment.

3. Needs and Benefits: Current regulations governing the operation of residential treatment facilities for children and youth mandate that all facilities must be safe and suitable for the comfort and care of patients. The proposed amendments are needed to clearly state the expectations of the Office with respect to fire safety. The inclusion of fire safety provisions is directed toward staff improvement and increased knowledge. This regulatory change is designed to ensure that staff can and will successfully manage a fire emergency. Requirements include completion of fire safety training for all staff, conducting of practice fire drills, testing of fire safety equipment, and a prohibition on the use of certain devices for heating, cooking or lighting. These requirements are consistent with the New York State Building Code and the accreditation standards of The Joint Commission.

The rule includes provisions that prohibit smoking within buildings. Smoking, if permitted on the grounds of the facility, will be limited to a specific location that has an approved non-combustible ash receptacle.

The proposal also updates references regarding facility construction and design, and corrects minor errors in existing regulations pertaining to legal authority and applicability.

4. Costs:

(a) Costs to State government: These regulatory amendments will not result in any additional costs to State government.

(b) Costs to local government: These regulatory amendments will not result in any additional costs to local government.

(c) Costs to regulated parties: There is no anticipated cost associated with implementation of these amendments.

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 should not have a significant increase in the paperwork requirements of providers.

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

8. Alternatives: The only alternative to the regulatory amendment would be inaction. The Office is charged with the responsibility of ensuring a safe and secure environment for persons receiving mental health services. Existing regulations do not clearly specify the Office’s expectations with respect to fire safety and smoking within buildings, nor do they include up-to-date information regarding the physical construction and design of facilities. Residential treatment facilities that have been issued an operating certificate by the Office must be aware of these expectations; therefore, that alternative was not considered.

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: These regulatory amendments are effective immediately upon adoption.

Regulatory Flexibility Analysis

The proposed rule establishes smoking and fire safety provisions for residential treatment facilities licensed by the Office of Mental Health, updates references regarding facility construction and design, and makes minor corrections to existing regulations. 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 584 of Title 14 NYCRR serve to establish smoking and fire safety provisions for residential treatment facilities licensed by the Office of Mental Health, update references with respect to facility construction and design, and make minor corrections to existing regulations. 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 proposed amendments. The rule making serves to establish smoking and fire safety provisions for residential treatment facilities licensed by the Office of Mental Health, update references regarding facility construction and design, and make minor correction to existing regulations.