PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Repeal of Part 814; and addition of new Part 814 to Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 19.07(c), 19.09(b), 19.40, 32.07(a) and 32.02
Subject:
General Facility Requirements.
Purpose:
Updates to reflect standards that are currently enforced as well as new provisions required by changes in other regulations.
Substance of proposed rule (Full text is posted at the following State website:www.oasas.ny.gov):
Articles 19 and 32 of the Mental Hygiene Law authorize the promulgation of rules and regulations to regulate and assure the consistent high quality of services provided within the state to persons suffering from chemical abuse or dependence, their families and significant others, as well as those who are at risk of becoming chemically dependent. 14 NYCRR Part 814 establishes the requirements for building standards in facilities in which chemical dependence services are located. These requirements ensure that patients receive services from qualified counselors in appropriate and safe physical surroundings, and receive services which comport with federal and state confidentiality and Medicaid requirements. The proposed new Part 814, General Facility Requirements, formalizes in regulation standards that are currently enforced as well as new provisions prompted by changes to other OASAS regulations.
§ 814.2 Incorporates by reference the Building Code of New York State (Title 19 NYCRR, Chapters XXXIII, subchapters A and B, et seq.), the Building Code of the City of New York (NYC Administrative Code, Title 27, Chapter 1), and all applicable local and state occupancy, use, building and zoning laws.
§ 814.3 Includes new requirements or clarification of existing requirements.
§ 814.4 Incorporates changes in square feet per occupant required by the NY State Building Code and changes in terminology and configuration of OASAS certified chemical dependence services. It clarifies when occupancy standards will change for facilities currently certified pursuant to lesser standards but grandfathered into current regulations.
§ 814.5 Updates the requirements applicable to supportive living facilities regarding compliance with local occupancy codes, fire safety measures, and configuration of space use.
§ 814.6 Contains provisions related to patient confidentiality in waiting areas and applies to a range of outpatient services in varied types of facilities.
§ 814.7 Contains language from the current version of section 814.6 regarding circumstances where an OASAS certified provider shares space with another corporate entity, reflecting an increase in frequency of this type of arrangement. The section adds a new requirement for a shared space agreement to ensure compliance with federal confidentiality laws.
§ 814.8 Clarifies and strengthens timing and notice requirements for OASAS approval of any space alternations in certified facilities.
New Part 814 removes former sections related to crisis services, chemotherapy chemical dependence outpatient services, and a smoke-free environment which are addressed within other sections of the Part or in other OASAS regulations. The new Part 814 will result in a reduction in paperwork for both OASAS facilities inspectors and OASAS certified providers in relation to re-certification applications and corrective action plans by clarifying ambiguity in current regulations and reducing the number of items required for facilities inspections and the number of waiver requests. The proposed regulations are also clearer for new certification applicants.
Text of proposed rule and any required statements and analyses may be obtained from:
Sara Osborne, Senior Attorney, NYS Office of Alcoholism and Substance Abuse Services (OASAS), 1450 Western Ave., Albany, NY 12203, (518) 485-2317, email: SaraOsborne@oasas.ny.gov
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:
Section 19.07(c) of the Mental Hygiene Law provides that the Office of Alcoholism and Substance Abuse Services is responsible for seeing that persons who abuse or are dependent on alcohol and/or substances and their families are provided with care and treatment which is effective and of high quality.
Section 19.09(b) of the Mental Hygiene Law authorizes the Commissioner of the Office of Alcoholism and Substance Abuse Services (Commissioner) to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.
Section 19.21(b) of the Mental Hygiene Law authorizes the Commissioner to establish and enforce certification, inspection, licensing and treatment standards for alcoholism, substance abuse, and chemical dependence facilities.
Sections 32.01 and 32.07(a) of the Mental Hygiene Law authorize the Commissioner to adopt any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by Article 32 of the Mental Hygiene Law.
The relevant sections of the Mental Hygiene Law cited above authorize the Commissioner to regulate the provision of alcoholism, substance abuse and chemical dependence services to patients, establish standards for the provision of such services, and established minimum qualifications of staff.
2. Legislative Objectives:
Articles 19 and 32 of the Mental Hygiene Law authorize the promulgation of rules and regulations to regulate and assure the consistent high quality of services provided within the state to persons suffering from chemical abuse or dependence, their families and significant others, as well as those who are at risk of becoming chemically dependent. 14 NYCRR Part 814 establishes the requirements for building standards in facilities in which chemical dependence services are located. These requirements ensure that patients receive services from qualified counselors in appropriate and safe physical surroundings, and receive services which comport with federal and state confidentiality and Medicaid requirements. The proposed new Part 814, General Facility Requirements, formalizes in regulation standards that are currently enforced as well as new provisions prompted by changes to other OASAS regulations.
3. Needs and Benefits:
The proposed regulation replaces the existing Part 814 to incorporate amendments necessary to bring OASAS regulations in conformity with changes in law, policy and technology affecting OASAS certified facilities that have occurred since general facilities regulations were initially promulgated in 2002. Such changes include changes in state and local building codes, technological advances in building safety and construction, and policy changes affecting OASAS programmatic goals. OASAS is currently regulating as if the new Part 814 is already promulgated because authorities outside of the regulatory scope of OASAS regulations, or other Parts of the OASAS regulations, have established standards of compliance that define best practices. Providers must utilize a waiver request and review process to resolve any discrepancies between current practice and the current version of the regulation. The proposed technical and substantive amendments in the new Part 814 will streamline administrative processes during certification, recertification, capital projects, enforcement inspections and reviews. The new Part 814 also removes internal numeric references to other OASAS regulatory Parts to avoid confusion and minimize the need for future amendments if/when numbering is changed. The following summarizes by section proposed amendments contained in the new Part 814.
§ 814.1 Legal base
New section 814.1 describes the Commissioner's authority to promulgate regulations applicable to facilities that provide alcoholism, substance abuse, and chemical dependence facilities.
§ 814.2 Building code requirements
New section 814.2 incorporates by reference the Building Code of New York State (Title 19 NYCRR, Chapters XXXIII, subchapters A and B, et seq.), the Building Code of the City of New York (NYC Administrative Code, Title 27, Chapter 1), and all applicable local and state occupancy, use, building and zoning laws. Unlike the current version of the regulation, there are no specific references to the State Sanitary Code and the State Uniform Fire Prevention and Building Code, since the new Part 814 requires compliance with applicable local and state occupancy, use, building and zoning laws.
§ 814.3 Requirements for all facilities
New section 814.3 includes many of the requirements set forth in the current version of the section and includes additional new requirements or clarification of existing requirements.
New section 814.3(b) clarifies requirements for facility floor plans to be kept on site and available for inspection.
New section 814.3(c) clarifies regulations relating to safety and fire precautions; for example, the paragraph: (1) requires quarterly frequency of fire drills for each "shift" rather than monthly random drills for the entire facility, with an exception for certified services located in hospitals which may follow fire drill schedules established and conducted by hospitals; (2) accommodates changes in portable heating technology and language describing such heaters by prohibiting "portable" space heaters rather than "unvented open" space heaters, and clarifies exceptions to prohibition of all "open flame devices" limited to "UL approved kitchen equipment and code compliant solid fuel heating devices;" (3) requires fire alarm "systems" and annual inspection and testing by a "certified vendor" where appropriate; and (4) requires annual employee training in use of fire extinguishers and evacuation plans.
New section 814.4(d) clarifies provisions for general building requirements related to privacy, confidentiality, fire safety, furnishings, utilities, and protection of patient records and medications kept on site, and requires a written policy and protocol for storage and disposal of medical waste. New language is included to specify that supportive living facilities are exempt from certain of these requirements.
§ 814.4 Additional requirements for all inpatient and residential facilities
Section 814.4 incorporates changes in square feet per occupant required by the NY State Building Code and changes in terminology and configuration of OASAS certified chemical dependence services. It clarifies when occupancy standards will change for facilities currently certified pursuant to lesser standards but grandfathered into current regulations ("until a major relocation or major renovation of OASAS certified treatment space occurs, or there is a change in the type of capacity of service certified at the present location"). Prohibition against cots or futons was removed in order to permit them in supportive living services and to avoid having to develop a list of other specific bed substitutes such as Laz-e-boys, inflatable mattresses, etc. A requirement for closets and wardrobes for each person occupying a bedroom is added.
§ 814.5 Additional requirements for supportive living facilities
New section 814.5 updates the requirements applicable to supportive living facilities regarding compliance with local occupancy codes, fire safety measures, and configuration of space use.
§ 814.6 Additional requirements for all outpatient facilities
New section 814.6 contains provisions related to patient confidentiality in waiting areas and applies to a range of outpatient services in varied types of facilities.
§ 814.7 Shared facilities
New section 814.7 contains language from the current version of section 814.6 regarding circumstances where an OASAS certified provider shares space with another corporate entity, reflecting an increase in frequency of this type of arrangement. The section adds a new requirement for a shared space agreement to ensure compliance with federal confidentiality laws.
§ 814.8 Space alterations
New section 814.8, which contains language from the current version of 814.10, clarifies and strengthens timing and notice requirements for OASAS approval of any space alternations in certified facilities.
New Part 814 does not include certain sections contained in the current Part, such as former sections 814.7 (additional requirements for all crisis services, 814.8 (additional requirements for chemotherapy chemical dependence outpatient services) and section 814.11 (smoke free environment), which are addressed within other sections of the Part or in other OASAS regulations.
4. Costs:
There are no increased costs anticipated from promulgation of the new Part 814.
a. Costs to the agency, state and local governments: There will be no additional costs to the agency, counties, cities, towns or local districts.
b. Costs to providers: There will be no additional costs to certified providers.
5. Local Government Mandates:
There are no new mandates or administrative requirements placed on local governments.
6. Paperwork / Reporting:
The new Part 814 will result in a reduction in paperwork for both OASAS facilities inspectors and OASAS certified providers in relation to re-certification applications and corrective action plans by clarifying ambiguity in current regulations and reducing the number of items required for facilities inspections. The proposed regulations are also clearer for new certification applicants.
7. Duplications:
There is no duplication of other state or federal requirements; applicable federal and state laws and regulations are incorporated by reference into this Part.
8. Alternatives:
The alternative to these changes is to continue operating facilities as if these regulations are already promulgated. This is a less efficient means for OASAS to meet its statutory and regulatory obligations related to facilities for certified services, since it requires providers in some cases to utilize a time consuming administrative waiver process.
9. Federal Standards:
There are no specific federal standards or regulations related to these amendments except those applicable to patient confidentiality, which are addressed by this regulation.
10. Compliance Schedule:
Providers will be in compliance with the new regulation immediately upon its promulgation because they are currently operating as if the new Part 814 was already in effect.
Regulatory Flexibility Analysis
Types / Numbers:
The proposed amendments to Part 814 impact, to varying degrees, all OASAS certified and funded programs. All providers may interact with local governments; some of these providers are also small businesses.
Reporting / Recordkeeping, Professional Services:
Regardless of type of program, location (rural, urban or suburban), it is anticipated that there will be no impact on reporting, recordkeeping or engagement of professional services by local governments or small businesses.
Costs:
Regardless of program treatment modality, size, or location (rural, urban or suburban), it is anticipated that there will be no costs to local governments or small businesses as a result of the proposed amendments.
Economic / Technological Feasibility:
Regardless of program treatment modality, size, or location (rural, urban or suburban), the proposed amendments require no new equipment or technological improvements beyond what is already required by state and local building and safety codes.
Minimizing Adverse Economic Impacts:
No adverse economic impacts associated with the proposed amendments have been identified. Providers are supportive of these proposed changes because they clarify points of ambiguity to make compliance with required regulations less burdensome and time consuming.
Participation of Affected Parties:
This regulation has not been updated since its initial promulgation in 2002. Since then, changes in the New York State building code, OASAS policies, other public policies for health and safety, and safety technology have made it necessary for OASAS to regulate its providers as if these changes were incorporated into the language of the regulation. Providers are aware of the need for these changes because they have already been affected by them; the process of drafting has included providers' active participation for several years. Additional input has been received from the OASAS Advisory Council and an OASAS/provider work group focused on administrative relief and paperwork reduction. Providers, stakeholders and the agency are supportive of these proposed changes.
Rural Area Flexibility Analysis
Types / Numbers:
The proposed amendments to Part 814 impact, to varying degrees, all OASAS certified and funded programs, some of which are located in rural areas.
Reporting / Recordkeeping, Professional Services:
Regardless of program location (rural, urban or suburban), it is anticipated that there will be no impact on reporting or recordkeeping or engagement of professional services by local governments or small businesses.
Costs:
Regardless of program location (rural, urban or suburban), there will be no cost impact on small businesses or local governments.
Economic / Technological Feasibility:
Regardless of location (rural, urban or suburban), the proposed amendments require no new equipment or technological improvements beyond what is already required by state and local building and safety codes.
Minimizing Adverse Economic Impacts:
No adverse economic impacts associated with the proposed amendments have been identified. Providers are supportive of these proposed changes because they clarify points of ambiguity to make compliance with required regulations less burdensome and time consuming.
Participation of Affected Parties:
This regulation has not been updated since its initial promulgation in 2002. Since then, changes in the New York State building code, OASAS policies, other public policies for health and safety, and safety technology have made it necessary for OASAS to regulate its providers as if these changes were incorporated into the language of the regulation. Providers are aware of the need for these changes because they have already been affected by them; the process of drafting has included providers' active participation for several years. Additional input has been received from the OASAS Advisory Council and an OASAS/provider work group focused on administrative relief and paperwork reduction. Providers, stakeholders and the agency are supportive of these proposed changes.
Job Impact Statement
No change in the number of jobs and employment opportunities is anticipated as a result of the proposed amendments because the amendments apply to structural requirements for facilities that house OASAS certified and/or funded programs, rather than to programmatic practices implemented by staff. Treatment providers will not need to hire additional staff or reduce staff size.
