To amend regulations pertaining to transfer or placement of patients.
Text or summary was published
in the July 2, 2008 issue of the Register, I.D. No. OMH-27-08-00002-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Joyce Donohue, NYS Office of Mental Health, 44 Holland Avenue, Albany, NY 12229, (518) 474-1331, email: cocbjdd@omh.state.ny.us
Revised Regulatory Impact Statement
1. Statutory Authority: Subdivision (b) of Section 7.09 of the Mental Hygiene Law grants the Commissioner of the Office of Mental Health (OMH) the authority and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.
Section 730.40 of the Criminal Procedure Law provides that a court may issue a "final order of observation" for an individual found incompetent to stand trial, which means the charges against the individual are dropped and the individual is committed to the custody of the Commissioner of OMH for observation and possible care and treatment.
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 1988, Section 730.40 of the Criminal Procedure Law (CPL) was found to violate equal protection by allowing commitments to a psychiatric hospital of persons found incompetent to stand trial who have had the charges dropped without proof of dangerousness by clear and convincing evidence (Ritter v. Surles, 144 Misc. 2d 945). While the statute has never been amended to reflect the changes necessitated by the Ritter decision, the changes mandated by the ruling of the case have been implemented by OMH. Over the years, the manner in which OMH has implemented Ritter has been the source of a number of disputes with patients' attorneys.
3. Needs and Benefits: In February, 2005, a lawsuit was commenced as a class action in federal district court claiming that the CPL section 730.40 patients are frequently designated to go to a secure facility by OMH with no hearing or other due process available prior to the designation (Bernstein v. Pataki). Current OMH practices require that within 24 hours of receiving the information that an individual is a CPL section 730.40 patient, OMH will designate a facility. The district court dismissed the case and denied the plaintiffs motion for class certification in December 2005. In April 2007, the U.S. Court of Appeals for the 2d circuit vacated the decision of the district court and remanded the case for further proceedings.
While preparing for trial, the parties had settlement discussions and it was suggested by plaintiff's attorneys (plaintiffs are represented by Mental Hygiene Legal Services) that an amendment to OMH's regulations would be sufficient to settle this case. The regulation under consideration is the product of the negotiations between plaintiff's attorneys, the Attorney Generals' office and OMH.
The amendments still allow OMH to designate a secure facility for a CPL section 730.40 patient. However, only those patients who have open felony charges or warrants outstanding, those with pending parole revocation hearings, those with a history of arrests for violent crimes or threats to commit violent crimes against persons, or those with a history of escape or attempted escape from a psychiatric facility, if the Commissioner believes, based upon a review of available information that such individuals would meet secure retention standards, would be designated to a secure facility. The Commissioner will then have 72 hours to determine whether or not the individual meets the criteria for having a mental illness for which inpatient care and treatment are necessary. If committed, the Commissioner will also send out notices that the individual is now a civil patient and no further notices of his/her transfer or release will be given unless in compliance with Mental Hygiene Law section 33.13.
The amendments also give the patient the right to have his/her commitment to the secure facility reviewed by the hospital forensic committee (HFC) within 30 days of admission. The HFC is to review the patient's placement in the secure facility to determine whether or not he presents such a substantial risk of harm to others that he needs the close supervision provided by a secure facility. A patient placed in a secure facility due to a history of arrests for violent crimes against persons, or threats to commit such crimes, or escapes or attempted escapes from a psychiatric facility is also entitled to object to his/her placement in the secure facility after a 30-day review period has elapsed. Such an objection must be made within 10 days of the 30-day periodic review.
The amendments call for the director of the facility to send to the Commissioner or his designee, the patient and his /her representative any written arguments and supporting documentation concerning the decision to admit the patient to a secure facility. Once an objection is filed, the Commissioner must designate a qualified psychiatrist or licensed psychologist to evaluate the patient and make a recommendation to the Commissioner. If the decision is confirmed, it shall be communicated to the director, the patient and the patient's representative.
Patients placed in a secure facility will be retained there only as long as he/she meets the criteria of this section to be so retained. The director of the secure facility is also required to review the need for retention in a secure facility at intervals of not more than six months, explaining the need for continued retention.
It should be noted that patients initially designated to a non-secure facility are still subject to transfer to a secure facility using 14 NYCRR Part 57, should that individual meet the requirements of that transfer regulation.
4. Costs: No additional costs are anticipated as a result of the adoption of this regulation.
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 alternative to implementing this regulation would be to go forward with the litigation. Although OMH believes its position is defensible, losing the litigation could potentially result in an order which would severely constrict or eliminate the ability of the Commissioner of OMH to admit directly to secure facilities patients remanded to his custody under CPL section 730.40, as well as an award of substantial attorney fees. Since the agency believes it can implement this regulation with no additional costs to OMH, the continuation of the litigation was rejected as inadvisable.
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 upon adoption.
