PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 527 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, arts. 7 and 33
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
To clarify that persons confined or committed to secure treatment facilities are afforded the same rights to object to care and treatment as those involuntarily committed to hospitals.
Subject:
Rights of patients.
Purpose:
To make Part 527 applicable to persons confined/committed to secure treatment facilities operated by Office of Mental Health as defined in Mental Health Law 10.03.
Text of emergency rule:
1. Paragraph (1) of Subdivision (a) of Section 527.1 of Title 14 NYCRR is amended as follows:
(1) Except as otherwise indicated by the specific context, and with the exception of sections 527.4 and 527.6, this Part shall apply to all psychiatric hospitals operated by the Office of Mental Health, all residential treatment facilities for children and youth, and to all psychiatric hospital services required to have an operating certificate from the Office of Mental Health, and provided further that section 527.8 shall also apply to all secure treatment facilities operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law.
2. Subdivision (b) of Section 527.1 of Title 14 NYCRR is amended as follows:
(b) The intent of this Part is to define the rights of patients receiving treatment at psychiatric hospitals and to extend certain rights provided in section 527.8 of this Part to persons confined or committed to secure treatment facilities operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law.
3. Section 527.2 of Title 14 NYCRR is amended to read as follows:
(a) [Mental Hygiene Law, section 7.07(c),] Section 7.07 of the Mental Hygiene Law gives the Office of Mental Health responsibility for seeing that the personal and civil rights of mentally ill persons receiving care and treatment are adequately protected.
(b) Section [7.09(c)] 7.09 of the Mental Hygiene Law authorizes the [commissioner] Commissioner to adopt regulations necessary and proper to implement any matter under his jurisdiction. [Section 7.09(i)] Such section also requires the [commissioner] Commissioner to promulgate regulations to address the communications needs of non-English-speaking individuals seeking or receiving services in facilities operated or licensed by the Office of Mental Health.
(c) Sections 10.06 and 10.10 of the Mental Hygiene Law give the Office of Mental Health responsibility for providing care, treatment, and control to sex offenders confined or committed to a secure treatment facility, as defined in Section 10.03 of such law.
[(b)] (d) Article 31 of the Mental Hygiene Law authorizes the commissioner to visit and inspect all services for the mentally ill in the State, and requires providers of certain mental health services to have an operating certificate issued by the Office of Mental Health. Section 31.04 of such law further empowers the [commissioner] Commissioner to issue regulations setting standards for licensed programs for the rendition of services for the mentally ill.
[(c)] (e) Section 33.02 of the Mental Hygiene Law establishes statutory rights of mentally disabled persons and requires the commissioner to publish regulations informing residents of facilities or programs operated or licensed by the Office of Mental Health of their rights under law.
[(d)] (f) Section 33.05 of the Mental Hygiene Law provides that each patient in a facility shall have the right to communicate freely and privately with persons outside the facility as frequently as he wishes, subject to regulations of the commissioner designed to assure the safety and welfare of patients and to avoid serious harassment to others.
[(e)] (g) Article 29-C of the Public Health Law establishes the right of competent adults to appoint an agent to make health care decisions in the event they lose decision-making capacity. Article 29-C further empowers the Office of Mental Health to establish regulations regarding the creation and use of health care proxies in mental health facilities.
[(f)] (h) The Omnibus Budget Reconciliation Act of 1990 (Public Law 101-508, sections 4206 and 4751) requires that institutional providers participating in the Medicare or Medical Assistance programs inform patients about their rights, under State law, to express their preferences regarding health care decisions.
5. Paragraphs (3) and (6) of Subdivision (a) of Section 527.8 of Title 14 NYCRR are amended as follows:
(3) Clinical director means the individual in charge of clinical services at the hospital or a secure treatment facility operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law, where the patient is receiving care and treatment, or a physician designated by that individual to carry out the responsibilities of the clinical director described in this section.
(6) Patients on involuntary status for the purposes of this section includes patients retained on an involuntary basis pursuant to article 9 of the Mental Hygiene Law, patients retained pursuant to the Criminal Procedure Law, Family Court Act or Correction Law patients on voluntary status for whom application to a court for involuntary retention has been made, [and] minors, other than those admitted on their own application, for whom consent of a parent or guardian cannot be obtained, and persons confined or committed to a secure treatment facility operated by the Office of Mental Health as defined in section 10.03 of the Mental Hygiene Law.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously published a notice of emergency/proposed rule making, I.D. No. OMH-20-08-00026-EP, Issue of May 14, 2008. The emergency rule will expire August 21, 2008.
Text of emergency 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
Regulatory Impact Statement
1. Statutory authority: Section 7.07 of the Mental Hygiene Law gives the Office of Mental Health responsibility for seeing that the personal and civil rights of mentally ill persons receiving care and treatment are adequately protected.
Section 7.09 authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under his jurisdiction.
Article 33 of the Mental Hygiene Law establishes statutory rights of mentally disabled persons. Section 33.02 of such law requires the Commissioner to publish regulations informing patients of their rights under law.
Article 29-C of the Public Health Law establishes the right of competent adults to appoint an agent to make health care decisions in the event they lose decision-making capacity. Article 29-C further empowers the Office of Mental Health to establish regulations regarding the creation and use of health care proxies in mental health facilities.
The Omnibus Budget Reconciliation Act of 1990 (Public Law 101-508, sections 4206 and 4751) requires that institutional providers participating in the Medicare or Medical Assistance programs inform patients about their rights, under State law, to express their preferences regarding health care decisions.
2. Legislative objectives: Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner's authority to establish regulations regarding mental health programs. In 2007, the Legislature enacted Article 10 of the Mental Hygiene Law to provide for the civil management of sex offenders who suffer from a “mental abnormality.” Such offenders who are predisposed to engage in repeated sex offenses may be involuntarily confined or committed to secure treatment facilities. Such secure treatment facilities were newly created by this legislation and could not have been contemplated when Section 527.8 of Part 527 of Title 14 NYCRR was promulgated. This emergency amendment clarifies that such persons are afforded the same rights to object to care and treatment as those non-sex offenders who are involuntarily committed to hospitals.
3. Needs and benefits: Section 527.8 of Part 527 of Title 14 was originally promulgated in response to the 1986 Court of Appeals decision in Rivers v. Katz, 67 NY2d 485. There, the Court held that, absent an emergency, persons held involuntarily at psychiatric facilities could only be treated with antipsychotic medication over their objection following a judicial finding that, first, the person lacks the mental capacity to make a reasoned decision with respect to proposed treatment, and second, the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest. The rights provided by the Court apply with equal force to persons committed to secure treatment facilities under Article 10, as they do to person committed to psychiatric hospitals under Article 9 of the Mental Hygiene Law.
4. Costs:
(a) cost to State government: These regulatory amendments will not result in any additional costs to State government.
(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 involve or result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.
6. Paperwork: This rule should not substantially increase the paperwork requirements of those affected.
7. Duplication: These regulatory amendments do not duplicate existing State or federal requirements.
8. Alternatives: The only alternative considered was not addressing whether persons determined to be detained or dangerous sex offenders who are involuntarily confined or committed to secure treatment facilities are afforded the same rights to object to care and treatment as those non-sex offenders who are involuntarily committed to hospitals. This 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 could be implemented immediately.
Regulatory Flexibility Analysis
Because it is evident from the nature of the proposed rule that there will be no adverse economic impact on small businesses or local governments, a regulatory flexibility analysis is not submitted with this notice.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not submitted with this notice because the proposed rule will not impose any adverse economic impact on rural areas.
Job Impact Statement
It is clear from the nature of this regulatory amendment, which simply clarifies the rights of persons who are confined or committed to secure treatment facilities operated by the Office of Mental Health, that there will be no adverse impact on jobs or employment opportunities in New York State.
