14 NYCRR | New York Codes, Rules and Regulations, Title 14 — Department of Mental Hygiene

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Chapter I General

Part 9 Procedure Under Article 730 Of The Criminal Procedure Law

N.Y. Comp. Codes R. & Regs. Tit. 14§ 9.1 Part 100 of title 22 of official compilation of codes, rules and regulations adopted and incorporated by reference

The provisions of the rules governing procedure under article 730 of the Criminal Procedure Law adopted by the Judicial Conference and appearing as Part 100 of Title 22 (Judiciary) of the Official Compilation of Codes, Rules and Regulations of the State of New York are hereby adopted and incorporated in Appendix 12 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14§ 9.2 Hospitals certified for examinations of defendants in criminal proceedings

[Additional statutory authority: Mental Hygiene Law, §9.01 ] Pursuant to section 730.20 of the Criminal Procedure Law and 22 NYCRR 100.2(b), as adopted by section 9.1 of this Title, the following hospitals are certified as having adequate facilities to examine a defendant to determine if he is an incapacitated person:

(a) Bellevue Hospital Center, New York, New York

(b) Binghamton Psychiatric Center, Binghamton, New York

(d) Central Islip Psychiatric Center, Central Islip, New York

(e) City Hospital Center at Elmhurst, Elmhurst, New York

(f) Edward J. Meyer Memorial Hospital, Buffalo, New York

(g) Gowanda Psychiatric Center, Helmuth, New York

(h) Grasslands Hospital, Valhalla, New York

(i) Harlem Valley Psychiatric Center, Wingdale, New York

(j) Hudson River Psychiatric Center, Poughkeepsie, New York

(k) Kings County Hospital Center, Brooklyn, New York

(l) Kings Park Psychiatric Center, Kings Park, New York

(m) Marcy Psychiatric Center, Marcy, New York

(n) Meadowbrook Hospital, East Meadow, New York

(o) Middletown Psychiatric Center, Middletown, New York

(p) Pilgrim Psychiatric Center, West Brentwood, New York

(q) Rochester Psychiatric Center, Rochester, New York

(r) Rockland Psychiatric Center, Orangeburg, New York

(s) St. Lawrence Psychiatric Center, Ogdensburg, New York

(t) Richard H. Hutchings Psychiatric Center, Syracuse, New York

(u) Utica Psychiatric Center, Utica, New York

(v) Willard Psychiatric Center, Willard, New York

Chapter II All Facilities

Subchapter A Admission And Transfer Of Patients

Part 15 Admission And Retention Of Patients

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.1 General

(a) This Part contains regulations governing admission and retention of full-time inpatients or residents in hospitals, schools and alcoholism facilities, as such terms are defined in the Mental Hygiene Law.

(b) Each patient shall have a preliminary physical examination upon admission and a comprehensive physical and mental examination within 48 hours after admission to the facility, excluding weekends and holidays. In addition, an initial assessment should be made at the time of admission of those social and economic factors which will impede and those which will facilitate the patient's discharge and a tentative plan of action should be formulated. This should include information about the patient's minor children, their number, age and whereabouts, if applicable, and appropriate action should be taken if there is a question about their welfare.

(c) Except as otherwise provided, patients and residents may be admitted to facilities only on the forms and in accordance with the procedures prescribed by the commissioner. Detailed admission procedures are included in the following manuals issued and periodically revised for particular groups of facilities by the department.

(1) The Department Policy Manual[FN*]

(2) The Manual of Medical Administrative Procedures--State Hospitals*

(3) The Manual of Medical Administrative Procedures--State Schools*

(4) Medical Records Manual*

(5) The Policy and Reporting Manual for Psychiatric Hospitals*

(6) The Policy and Reporting Manual for Residential Treatment Facilities for the Retarded*

(7) The Policy and Reporting Manual for Psychiatric Units*

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.2 Personal property of a patient

(a) Admission and treatment procedures must be designed to minimize the perception of being estranged from the rest of the community, to eliminate any depersonalizing or degrading procedures, and to maximize the patient's self-esteem. This would include, but not be limited to, patients maintaining possession of their own clothing and personal belongings unless contraindicated for health or safety reasons.

(b) All personal property, including money, shall remain in the possession of patients unless they appear incapable of caring for them or wish to turn over such personal property for safekeeping. In such cases, all money received and held for a patient, and any interest accrued on said money, shall be held in trust on his or her behalf. Patients shall be advised that they are responsible for all personal property and money they choose to retain.

(c) The director of a facility may take temporary custody of a patient's personal property which is turned over to him by family, friends or other persons. In such a case, the director shall issue a receipt to the person turning over said possessions as well as to the patient.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.3 Information to be given patients

(a) Each person admitted to a facility shall be informed by an appropriate staff member, at the time of admission, of the character and class of the facility.

(b) Each patient shall be given notice of his or her status and rights at the time of admission to the facility in accordance with the procedures in the above-mentioned manuals. Patients unable to read written notice of status and rights shall have same read and explained to them by an appropriate staff member in an appropriate language.

(c) Patients shall be reinformed of their status and rights as required by law in accordance with procedures in the manuals hereinbefore mentioned. Facility staff members shall provide such information about a patient's status and rights at other times upon request.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.4 Admission and retention of certain nonobjecting mentally retarded persons by schools

(a) Persons so seriously mentally retarded that they do not have sufficient understanding to be suitable for voluntary admission, and who do not object thereto, may be admitted to and retained in a school in accordance with section 33.25 of the Mental Hygiene Law and the procedures established thereunder.

(b) A mentally retarded person admitted to a school on a voluntary basis on his own application or involuntarily on medical certification shall not subsequently be converted to nonobjecting status.

(1) A mentally retarded person admitted to a school as a voluntary resident upon application of a parent or guardian (minor voluntary) may be converted to nonobjecting status when he or she reaches 18 years of age and is otherwise appropriate for nonobjecting status.

(2) This section shall not prevent the conversions to nonobjecting status of residents admitted in accordance with former sections 123 and 124 of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.5 Informal admissions

(a) The commissioner hereby approves all State hospitals and all facilities certified in the hospitals class to receive persons suitable therefor on an informal basis.

(b) Any suitable person over 16 years of age in need of care and treatment requesting admission may be admitted on an informal basis.

(c) A copy of the notice of status and rights given to a person admitted on an informal basis shall be sent to the Mental Health Information Service. The copy of such notice of a person admitted to a general hospital psychiatric unit need not contain the patient's name but, if it does not, it shall include identification of the patient by number and room or ward location to enable the Mental Health Information Service representative to contact him readily.

(d) Form 473 DMH, Acceptance of Informal Admission,is prescribed for use in State and private hospitals. If such form is not used in a general hospital, the patient's record shall clearly show that the patient has been admitted on an informal basis and document the patient's suitability therefor.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.6 Limitations on use of consecutive two-physician certificate admission

A patient admitted to a hospital upon an application and certificate of two physicians, pursuant to section 31.27 of the Mental Hygiene Law, may be continued in such hospital upon another two-physician certification pursuant to such section only upon condition that an application be made, within 72 hours of the filing of such second application, for a court order, pursuant to section 31.33 of the Mental Hygiene Law, authorizing continued retention of such patient. If application for such court order is not made within 72 hours, the patient shall be discharged.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.7 Request for court authorization to retain a voluntary patient

(a) If a voluntary patient requests his release and there are reasonable grounds for belief that the patient may be in need of involuntary care and treatment, the director may retain the patient for 72 hours.

(b) Before the expiration of such 72-hour period, the director shall cause the patient to be examined by two physicians, or one physician and one psychologist if the patient is a resident in a school, who shall report their findings and conclusions separately to the director, and he shall either release the patient or apply to a court for an order authorizing the involuntary retention of such patient. The reports and certificates of the two examining physicians, or physician and psychologist, shall be submitted to the court as part of any such application.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 15.8 Involuntary admission on the certificate of a director of community services or his designee

(a) The director of any facility in the hospital class, upon application by a director of community services or an examining physician duly designated by him, may receive and care for in such hospital as a patient any person who, in the opinion of the director of community services or his designee, has a mental illness for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others. The need for immediate hospitalization shall be confirmed by a staff physician of the hospital prior to admission.

(b) If such a patient is to be retained beyond 72 hours of admission, excluding Sundays and holidays, and does not agree to remain as a voluntary patient, the certificate of another examining physician shall be obtained. Such additional examining physician shall be a psychiatrist who need not necessarily be on the staff of the hospital. Psychiatrist, for purposes of this section, shall mean certified as a psychiatrist, or eligibility for such certification, by the American Board of Psychiatry and Neurology or certified as a qualified psychiatrist by the commissioner.

(c) No person disqualified by section 31.05 of the Mental Hygiene Law from acting as an examining physician for the admission of a patient shall be eligible to service as the additional examining physician for this type of admission.

Part 17 Transfer Of Patients

N.Y. Comp. Codes R. & Regs. Tit. 14 § 17.1 Who may request transfer

A patient may be transferred from one inpatient facility to another inpatient facility of the same class by order of the commissioner upon written request for such order by the patient or any other interested party.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 17.2 Content of request

The written request for an order of transfer shall state or include:

(a) The reasons for the request; indicating how the patient will benefit from the transfer.

(b) The name and address of the person requesting the transfer and his relationship to the patient.

(c) The name of the facility to which the transfer is proposed, and the written consent of the director of such facility to the transfer.

(d) The age of the patient. In the case of a voluntary patient under 18 years of age if the request for transfer is not made by his parent or legal guardian, the request shall include the written consent of the parent or guardian unless the patient was admitted on his own motion in which case his written consent must be obtained.

(e) The legal admission status of the patient.

(1) If the patient is voluntary or informal and is not requesting the transfer, the request shall include his written consent.

(2) If the patient is involuntary or non-objecting, the proposed transfer shall be discussed with the patient. No request shall be made by the facility if the patient objects unless he has had the opportunity to appeal the decision to the director. The request shall state that the patient does not object or the result of any appeal.

(f) A statement that no court proceedings are pending involving the patient.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 17.3 Issuance of order

(a) If the commissioner or his designee is satisfied of the need for the transfer, he shall issue an order to the sending facility.

(b) Such order shall require the facility to transfer the patient along with the original of the admission paper and the case record.

(c) Notice of transfer must be sent by the sending facility to the nearest relative and the Mental Health Information Service. If the patient is under 21 years of age and the transfer is to be made without the written consents of both the patient and parent or legal guardian, such notice shall be provided to the Mental Health Information Service at least three days prior to the transfer.

(d) The terms of the order shall be carried out as soon as possible.

(e) The duplicate of the order must be filed in the sending facility.

(f) The director of the receiving facility shall, within three days after the patient is received, notify the department of the fact and the date thereof but a copy of the admission paper need not accompany the notice.

(g) When patients are transferred from one facility in the department to another, the sending facility shall see that the patient has suitable clothing appropriate to the sex, age and condition of the patient and the season of the year.

(h) With the participation of the patient, the facility shall determine who may accompany a woman patient who is being transported to or from a facility. In permitting a woman or the patient's father, husband, brother or son to accompany her, the team must ascertain that there are no contraindications to granting such permission.

(i) The transfer may be effected by the patient's family or friends, the receiving facility or other interested party. In the event that such arrangement cannot be made the sending facility shall effect the transfer through its own resources.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 17.4 Approval of transfer without order

(a) The commissioner hereby approves transfers without order from any facility in the department to any other facility in the department for a period of 30 days for patients in need of special medical or surgical care available in the receiving facility. Such transfers shall be reported to the department as directed.

(1) Such transfers shall continue beyond 30 days between two facilities in different classes only with the approval of the commissioner based on a request for extension showing:

(i) The physical diagnosis or condition which required the original transfer.

(ii) A summary of the treatment provided and its effect.

(iii) A plan for continued treatment to be provided and its goals.

(iv) A statement indicating why the required treatment cannot be provided at the original facility.

(v) A statement indicating how services for the mentally disabled are being provided.

(vi) The additional period during which the transfer without order is to be continued.

(2) Transfer for special medical or surgical care between facilities of the same class may be extended beyond 30 days by effectuating a transfer pursuant to sections 17.1 through 17.3 of this Part.

(b) Unless otherwise prohibited by court order in specific cases the commissioner hereby approves temporary transfers without order from any facility in the department to the Institute for Basic Research in Mental Retardation, for a period not to exceed 60 days, of patients or residents on voluntary, informal or non-objecting status. Written consent must be obtained from the patient or someone authorized to act on his behalf. The transfer may be extended for an additional period of not to exceed 60 days by order of the commissioner. No further extension is permitted. The patient or resident shall be returned to the facility from which he came upon the expiration of the authorized transfer period but the patient or resident shall be so returned prior to such expiration upon the request of the patient or of the person who has given consent on behalf of the patient or upon the determination of the director of said institute that his presence at the institute is no longer needed.

(c) The commissioner hereby approves temporary transfers without order of patients who are required to appear at court hearings, to any other department facility in proximity to the court where such court hearings are scheduled to be heard. Such transfers shall be reported to the department in accordance with procedures set forth in the department's policy manual. Such temporary transfers shall continue beyond 30 days only upon written approval of the commissioner based upon a written request stating the reasons for the extended period of transfer.

(d) The Mental Health Information Service shall be notified by the sending facility of any such transfer without order.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 17.5 Transfer of patients admitted in accordance with section 31.39 of the mental hygiene law

(a) A patient admitted to a hospital in accordance with section 31.39 of the Mental Hygiene Law may be admitted to another hospital pursuant to the provisions governing involuntary admission on application supported by medical certification without the necessity of obtaining an order of transfer.

(b) No patient shall be transferred from one hospital to another as described in subdivision (a) of this section unless the Mental Health Information Service is provided with prior notice of the proposed movement.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 17.6 Other orders of transfer

(a) The commissioner may order the transfer of any patient or group of patients on his own motion when warranted by the condition of the patient or the ability of the facility to provide adequate care and treatment for such patient or patients.

(b) The receiving facility shall take all necessary actions to regularize the legal status of any such patients retained by it.

Part 18 Procedure For Treatment And Hospitalization Of Certain Mentally Ill Prisoners In Jails

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.1 Legal basis

This Part is designed to implement subdivision 3 of section 508 of the Correction Law which provides for the treatment and hospitalization of mentally ill prisoners in jails, other than prisoners serving sentence.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.2 Definitions

(a) Director of community mental health services means the director of community services as defined in the Mental Hygiene Law and is the person responsible for the administration of community mental health and mental retardation services in a county or in the City of New York, whether known or referred to as director, commissioner or otherwise; and in the City of New York such term shall mean the Commissioner of Mental Health and Mental Retardation Services of such city.

(b) Director when used in connection with a hospital means the person in charge of the facility, whether known or referred to as director, superintendent or otherwise.

(c) Prisoner means a person confined in a jail either in a civil case or upon a criminal charge. It does not include a prisoner serving a sentence of imprisonment.

(d) Hospital or psychiatric hospital means a hospital for the care or treatment of the mentally ill as defined by the Mental Hygiene Law.

(e) Warden means the person in charge of a jail whether known or referred to as warden, sheriff, jailer, or otherwise.

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

(g) In need of involuntary care and treatment shall mean that a person has a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment.

(h) Likelihood to result in serious harm shall mean

(1) substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself or

(2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.3 Notification to appropriate director of prisoner's need for hospitalization

(a) If a jail physician and a warden certify in writing that a prisoner in a jail is in such a state of mental health that he is in need of involuntary care and treatment and that, in their opinion, the prisoner should be removed to a psychiatric hospital for treatment, the warden shall immediately notify the director of community mental health services of the county or city where the jail is located. Such notification shall be in writing or, if given by telephone or orally, shall be confirmed in writing. A copy of the certification shall be filed at the jail and a copy shall accompany the notification.

(b) If there is no such director of community mental health services, notification shall be given to the director of a hospital operated by local government within such county or city that has been certified by the Commissioner of Mental Hygiene as having adequate facilities to examine defendants pursuant to article 730 of the Criminal Procedure Law (see section 9.2 of this Title). If there is no such hospital in the county or city in which the jail is located, the notification shall be given to the director of the State hospital operated by the Department of Mental Hygiene serving the county in which the jail is located.

History

In accordance with the requirement of section 508.(3)(b)(i) of the Correction Law, the Judicial Conference has approved section 18.3 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.4 Examination and hospitalization of prisioners

The director or director of community mental health services who has received a notice in accordance with the foregoing section, if licensed to practice medicine in the State of New York, or someone designated by him who is so licensed shall forthwith examine the prisoner. If the determination upon such examination is that the prisoner is in need of involuntary care and treatment, the appropriate application and medical certificates required by section 31.27 of the Mental Hygiene Law shall be completed. The prisoner shall then be taken immediately to an appropriate hospital for admission pursuant to such law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.5 Emergency hospitalization

If the warden shall certify, with a copy of the certification to be filed at the jail, that a prisoner appears to have a mental illness which is likely to result in serious harm to himself or others and for which care in a psychiatric hospital is appropriate, admission to a hospital shall be obtained in the following manner:

(a) Pursuant to the provisions for emergency admission authorized by sections 31.37 or 31.39 of the Mental Hygiene Law, the director of community mental health services or his designee, when notified by the warden, shall obtain the immediate hospitalization of such a prisoner if, after examination of the prisoner, it is his opinion that the prisoner has a mental illness for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others. The jail physician, if otherwise qualified, may be such a designee.

(b) If the director of community mental health services or a designee thereof is not available to make a decision with respect to immediate hospitalization of a prisoner, a peace officer of the State, town, village, county or city who is a member of the State police or of an authorized police department or force or of a sheriff's department shall, pursuant to section 31.41 of the Mental Hygiene Law, remove such prisoner, if the prisoner appears to such peace officer to be mentally ill and is conducting himself in a manner which is likely to result in serious harm to himself or others, to a hospital approved by the Commissioner of Mental Hygiene to receive and retain patients pursuant to section 31.39 of the Mental Hygiene Law (for a list of approved facilities, see subdivision [e] of section 15.9 of this Title). Upon admission of the prisoner to a hospital pursuant to such sections of law, the warden shall notify the director or director of community mental health services who has been given notification pursuant to section 18.3 of this Part, the prisoner's attorney and, if information about the family is available, the prisoner's family.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.6 Applicability of mental hygiene law

The admission and retention of the prisoner in a hospital shall be subject to the provisions of articles 29 and 31 of the Mental Hygiene Law, including, but not limited to, the confirmation of need for admission, notice, hearing, review and judicial approval of continued retention and notice to and access to the Mental Health Information Service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.7 Guarding of prisoner

While the prisoner is in the hospital, he shall remain in the custody under sufficient guard of the warden of the jail from which he came, unless custody is transferred to the Office of Mental Health pursuant to an agreement between the warden and the Commissioner of Mental Health.

History

Amended New York State Register June 6, 2018/Volume XL, Issue 23, eff. 6/6/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.8 Return of prisoner to jail

A prisoner admitted to a hospital pursuant to this Part shall be returned to the jail when it is determined that he is no longer in need of involuntary care and treatment, unless, subject to the approval of the court, the prisoner voluntarily agrees to continuation of care and treatment. Such continuation of treatment on a voluntary basis shall be subject to these regulations and to all the provisions of the Mental Hygiene Law applicable to voluntary patients.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.9 Notification to court of incapacity of prisoner

If the director of a hospital in which a prisoner is hospitalized pursuant to this Part has reason to believe that the prisoner may be an incapacitated defendent as defined in article 730 of the Criminal Procedure Law, the director shall so notify the court in which the criminal charges are pending.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 18.10 Pending criminal process

Nothing in this Part shall affect:

(a) the course of the pending criminal process involving a prisoner being treated pursuant to this Part or,

(b) any obligation of the warden or other official to return the prisoner to court in the course of such criminal process or,

Subchapter B INSTITUTIONAL CARE AND TREATMENT

Part 22 Service Of Legal Process And Execution Of Instruments By Patients

N.Y. Comp. Codes R. & Regs. Tit. 14 § 22.1 Definitions

For the purpose of this Part, the following terms shall have the designated meaning:

(a) Facility shall mean a hospital, school, or alcoholism facility, as such terms are defined in the Mental Hygiene Law, for the inpatient care and treatment of the mentally ill, the mentally retarded, or the alcoholic.

(b) Private facility shall mean a facility which requires an operating certificate from the Commissioner of Mental Hygiene.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 22.2 Service of legal process

(a) The director or officer in charge of a facility shall not permit the service of any legal process upon any patient except upon an order of a New York State court of record or of a Federal court, which order shows that the court had notice of the fact that the person sought to be served was on the date of the order a patient in such facility. The foregoing rule shall not apply to service of the following legal papers, which may be made upon patients without court order:

(1) citations issued by the Surrogate's Court for probate of wills, letters of administration and for final accounting; and for appointment of guardians for mentally-retarded persons;

(2) notice of petition for appointment of a committee or conservator, and notice of final accounting of committee or conservator.

(b) At the time of the service of any process upon a patient, the director or one of his assistants or the officer in charge shall be present and a descriptive note must be entered in the patient's case record. A copy of the process served, together with a copy of the court order, must be filed in the patient's record and an additional copy of such papers must be given to each of the following:

(1) the committee, conservator, or guardian of the patient or, if there be none, to the nearest relative or friend, together with an explanatory letter;

(2) the Mental Health Information Service;

(3) in the case of a State facility, to

(i) the patient resource agent for the facility; and,

(ii) the Department of Law.

The director or officer in charge is responsible for distribution of the legal papers served upon the facility and/or the patient.

(c) In order to comply with the foregoing requirements, the process server shall provide six copies when he makes service on a patient in a State facility and four copies when he makes service on a patient in a private facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 22.3 When patient may sign legal instrument

(a) No patient shall be permitted to sign any bill, check, draft or other evidence of indebtedness, to make a will, or to execute any contract, deed, mortgage, or other legal conveyance, until after the director or officer in charge of the facility has made a determination that the patient has the mental capacity and willingness to execute the instrument. The facts and circumstances surrounding such transaction, including the document to be executed by the patient shall be carefully scrutinized by the director or officer in charge who shall also interview or cause the patient to be interviewed by a staff physician for the purpose of determining:

(1) whether the patient has sufficient mental capacity to understand the transaction and does understand the nature and consequences of his act in executing and issuing the instrument, and

(2) whether the patient is willing to sign and execute the instrument.

(b) If the determination is that the patient has the mental capacity and is willing to execute the instrument and if the patient does not have a committee, conservator, or guardian, the director or officer in charge shall permit the patient to execute the instrument and shall enter or cause to be entered in the patient's case record a descriptive note of the transaction and a certification by the interviewing physician that, in his opinion, the patient:

(1) understood the nature and consequences of his act in signing and executing the instrument;

(2) was willing to sign and execute the instrument.

(c) If the patient has a committee, conservator, or guardian or if the determination is that the patient does not have the mental capacity or the willingness to execute the instrument, the patient shall not be permitted to execute the instrument except upon order of a New York State court of record or of a Federal court, which order shall show that the court had notice of the fact that the person whose signature is sought to be obtained was at the date of the order a patient.

(d) Nothing in this Part shall prevent a patient from being permitted to endorse a check if the money is to be deposited in a bank account in his own name or, in the case of a State facility, in an account in his name in the business office of the facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 22.4 Posting notice of regulation

The director or officer in charge shall conspicuously post copies of this Part in the general reception room, visiting rooms and administrative offices of each facility and elsewhere, where it will be seen by the general public.

Part 25 Work Activities Of Patients

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.0 Applicability

This Part applies to all facilities operated by, or receiving an operating certificate from, the Department of Mental Hygiene.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.1 General

(a) Patient means any person receiving services for mental disability and includes inpatient, outpatient, resident, client or any other term used to describe a person receiving such services.

(b) Each facility shall provide patients with rehabilitation services which will optimize the physical, psychological, social and vocational development of each patient with a view to meaningful employment.

(1) The objective shall be to assist every patient to move as far as possible toward independent living through the development of:

(i) self-skills;

(ii) social competence, including communication skills; and

(iii) vocational competence.

(2) These services may be rendered at the facility or elsewhere in the community.

(c) Vocational rehabilitation services shall be available to patients, as appropriate to their developmental levels, and in accordance with their overall service plans. When indicated, the following vocational rehabilitation services shall be provided as part of the patient's overall service plan:

(1) the fullest possible participation of the patient in the formulation of this plan;

(2) vocational evaluation, including written comprehensive interdisciplinary evaluation (medical, psychological, social, vocational and educational) that generates information relevant to vocational objectives and goals;

(3) written vocational objectives for each patient; and

(4) a written plan to achieve the stated objectives including the assignment of responsibilities.

(d) Implementation of the plan should take into consideration the developmental level of the patient and include, but not be limited to:

(1) prevocational programs to promote work readiness, including relevant vocational academic instruction, the development of work attitudes, self-help and social skills, and practice in job tasks;

(2) vocational training provided through on-the-job training, transitional sheltered workshops, work-study programs, and classroom trade training;

(3) vocational placement in competitive employment, sheltered workshops or trade training programs;

(4) assistance in vocational placement, including such job-related factors as living arrangements, social, recreational and religious activities, medical and educational services, transportation, legal and financial affairs; and

(5) completion of reports on a timely basis documenting the services provided and the patient's progress in relation to these services. These reports shall be included in the patient's clinical record.

(e) Follow-up evaluation shall be provided to determine the effectiveness of the rehabilitation program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.2 Patients involved in work activities

(a) No patient shall be required to perform any tasks involved in training, work training or work, except in relation to his or her personal care and possessions. Each patient shall be given written notice and oral explanation as necessary that he or she may not be required to work if he or she chooses not to. Patients may agree voluntarily to engage in work in the facility only as provided in this Part.

(b) Any patient who engages in training involving work, work training, or work in a facility shall be informed, orally and in writing, of his/her rate of pay, pay period, the methods of determining total pay, deductions from total pay and reasons therefor.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.3 Prevocational training and evaluation

(a) Prevocational training is the process of developing the patient's functional competence to be able to participate effectively in vocational training or work. This process includes the development of appropriate attitudes toward work, social and personal habits necessary to job performance and interactions with coworkers, and physical skills and performance necessary to the performance of job tasks. Prevocational evaluation is the process of identifying and assessing an individual's assets, interests and limitations and developing from them appropriate vocational goals and objectives and means for their attainment.

(b) Prevocational training and evaluation may include performance of work tasks without compensation which would otherwise require compensation provided that:

(1) patient participation in such activities is voluntary;

(2) the work tasks are part of an overall plan designed and implemented to increase work readiness and training potential; and

(3) work tasks are directed and supervised in accordance with the patient's overall service plan.

(c) While compensation for work tasks performed as part of prevocational training and evaluation is not required, it is encouraged especially for its incentive effect.

(d) At the conclusion of three months of performance of prevocational work tasks, these tasks shall be considered to be work requiring compensation in accordance with section 25.5 of this Part, unless:

(1) there is a comprehensive review of the prevocational training or evaluation plan and the patient's progress in performance of assigned tasks by a multi-disciplinary group which, on the basis of the review, finds and certifies that:

(i) the prevocational plan is adequate to indicate the probability that it will result in the patient being able to undertake vocational training in the future; and

(ii) the patient's work performance is such that the production of the patient is insignificant;

(2) such review is repeated each 60 days if performance of work tasks without compensation is continued;

(3) a written report of each such review is made part of the patient's record; and

(4) the patient is informed of the results of the review and of his or her right to object and appeal as provided in section 27.8 of this Part.

(e) Performance of work tasks in prevocational training shall be in accordance with the applicable Federal and State laws and regulations and the terms and conditions of any certificates issued thereunder.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.4 Vocational training

(a) Vocational training is the process of providing a patient with job training through on- and off-job instructions and performance of actual work tasks designed and supervised to increase the patient's ability to work.

(b) No patient may participate in work involved in vocational training unless the facility has first obtained a Federal Labor Department certificate. This certificate is issued by the Facilities Division of the Office of Vocational Rehabilitation of the New York State Education Department as an agent of the Federal Labor Department and any such participation shall be in accordance with the terms and conditions of the certificate.

(c) Compensation for work performed in vocational training shall be paid in accordance with the terms and conditions of the certificate.

(d) Facilities shall provide or arrange for the provision of relevant services for the mentally disabled for patients involved in vocational training as provided in this section as necessary to their total habilitation or rehabilitation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.5 Employment of patients

(a) Work by a patient may be an appropriate part of the patient's overall service plan only in accordance with this section.

(b) Sheltered work may be provided to patients only in workshops having appropriate certification in accordance with applicable Federal and State laws and regulations. Such work shall be provided, supervised and compensated in accordance with the certificate issued.

(c) A patient may engage in work involved in the ongoing operation and maintenance of the facility only if he or she is qualified, has agreed voluntarily to perform such work, and is compensated as a regular employee or under a special certificate issued by the Federal or State Department of Labor at rates applicable thereto.

(d) A patient may be involved in the care (feeding, clothing, bathing), treatment, training or supervision of other patients only if he or she has agreed voluntarily to perform such work, has been specifically trained in the necessary skills, has the humane judgment required for such activities, is adequately supervised, and is compensated as a regular employee or under a special certificate issued by the Federal or State Department of Labor at rates applicable thereto.

(e) Patients may be employed by an outside employer only if the employer complies with all applicable State laws and regulations.

(f) Nothing in this section shall diminish the expectation that whenever patients are able, they will maintain their personal possessions and living areas.

(g) Under no circumstances shall any patient be allowed to perform work tasks under conditions, in facilities, or on machines or equipment which are not in full compliance with all applicable Federal and State laws and regulations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.6 Records and reports

Any facility in which patients perform work tasks shall establish and maintain for each such patient a record in addition to the patient's service plan and record (as indicated in section 25.1[c] and [d] of this Part) which includes the following in addition to any information required by Federal or State laws:

(a) a cumulative record of dates and hours worked;

(b) a description of the work performed;

(d) the rate of payment; and

(e) a summary total of payments made.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 25.7 Exceptions

(a) No provision of this Part shall be deemed to limit the ability of a facility to hire any patient or former patient in accordance with regular employment practices of the facility.

(b) This Part shall not apply to patients who volunteer to participate in an organized system of volunteer services, provided that:

(1) the patient has the mental capacity to volunteer, does volunteer, and a written record of the determination of mental capacity is retained in the patient's clinical record;

(2) such services would not be compensated by the facility if performed by a person other than a patient;

(3) such work shall be directed and supervised in accordance with the patient's individual service plan; and

(4) a record of such volunteer work shall be maintained in accordance with section 25.6 of this Part.

(c) This Part shall not apply to clients who reside and work within an integrated residential community pursuant to sections 27.2(g) and 27.3(f) of this Title. However:

(1) an integrated residential community shall design and implement a means to ensure that clients are protected from exploitation; and

(2) under no conditions shall a client of an integrated residential community be permitted to perform work tasks or activities without appropriate supervision or perform on equipment and under conditions which do not adequately provide for the client's health, safety and welfare.

Part 27 QUALITY OF CARE AND TREATMENT

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.1 Background and intent

(a) Applicability.

This Part shall apply to facilities in the department and to facilities which are required to have operating certificates from the department unless the context indicates otherwise or the said facility is an integrated residential community as defined in section 27.2(g) of this Part, in which case the requirements of the said section will apply.

(b) Right to individual program.

Patients have a right to an individual program of services which will maximize their abilities to cope with their environment, will foster social and vocational competence and will enable them to live as independently as possible.

Patients have a right to receive services from staff which is competent and of sufficient number to administer services adequately.

(d) Respect for cultural identity.

Patients have a right to be treated in a way which acknowledges and respects their cultural identity.

(e) Privacy.

Patients have a right to a maximum amount of privacy consistent with the effective delivery of services. This includes, but is not restricted to, privacy of person, of personal belongings, and of communications.

(f) Objection to treatment.

Patients have a right to object to any form of care or treatment and to appeal decisions with which they disagree.

(g) Complaints.

Patients may object to conditions at the facility that are not directly related to care and treatment by following the general procedures for objection and appeal set forth in this Part.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.2 Definitions

As used in this Part:

(a) Facility means any place in which services for the mentally disabled are provided. It includes residential and nonresidential facilities, except as the context indicates otherwise.

(b) Patient means a person receiving services for the mentally disabled at a facility. It includes a resident at a school.

(c) Research includes, but is not limited to, any use of experimental drugs or treatment procedures as defined in section 27.10 of this Part.

(d) Sterilization means any procedure or operation, the primary purpose of which is to render an individual permanently incapable of reproducing and which is not a necessary part of the treatment of a physical illness or injury.

(e) Integrated residential community means a program that is certified by OPWDD as a residential program and is recognized by OPWDD as a service delivery alternative. In order to be considered an integrated residential community, the following criteria shall be met:

(1) The program shall be required to utilize a live-in staffing pattern, which promotes full and active interactions, between staff and clients, minimizes disruptions in clients' lives, and maximizes the stability of the residence. Not only are staff required to live with developmentally disabled clients, but the facility should be the staff person's primary domicile. The program is required to have disabled and nondisabled individuals working together. Staff are expected to actively participate in all aspects of daily living with clients interacting with them on a 24-hour, continual basis to provide a home community for both clients and staff.

(2) Developmentally disabled persons shall be integrated into most aspects of the program's operation. Developmentally disabled persons shall not do more work or specific kinds of work than are done by program, support or administrative staff. The environment shall be one of shared activities and mutual interdependence among disabled persons, program staff and administrators.

(3) The residence, the corporate entity and/or program's principles of care must be recognized as providing exemplary and excellent levels of care through evidence of national or international awards, testimonies and/or letters of reference from recognized persons in the MR/DD or government fields, or as recognized in the scholarly literature.

(4) The majority of staff directly or indirectly caring for the clients and administering the residence should be unsalaried.

(5) The residence shall demonstrate that it actually does provide excellent care, or for new residences, could provide such care on behalf of client growth and dignity, at a public cost lower than other programs serving a similar client population. The residence shall be able to demonstrate that services, care, and nuturance are given in such a way as to maximize each client's development and the quality of his or her life.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.3 Individual service plans

(a) General requirements.

Directors of facilities and their staff shall develop services which are commensurate with each patient's needs and well-being, the well-being of others, and are least restrictive to a patient's rights.

(b) Formulation of the plan.

Directors of facilities and their staff shall assure each patient the opportunity to participate to the fullest extent possible in the establishment and revision of his or her individual service plan, except in the case of those programs which comply with the requirements of section 27.2(g) of this Part. Integrated residential communities are required to comply with subdivision (f) of this section. An appropriate staff member of the facility shall note the nature of the participation in the patient's clinical record.

Appropriate members of each facility's staff shall establish for each patient a written individual service plan. For outpatients, this plan shall include those elements below which are appropriate to the goals of service. For inpatients, the plan shall include:

(1) a comprehensive statement of the physical, psychological, social, economic, educational and vocational assets and disabilities stated in terms of performance and functional capabilities of the patient;

(2) a statement of the goals of the services to be provided, derived from and based on the statement of assets and disabilities and related to plans for return to the larger community; and

(3) a statement of the methods, procedures, techniques and activities to be provided towards the attainment of these goals; the statement shall identify the specific staff who will be involved in carrying out the several aspects of the plan.

(d) Periodic reviews.

Directors of facilities shall designate appropriate staff members to make periodic review of the functional assets and disabilities of the patient, and of the goals, methods and effects of services provided. In facilities for the mentally ill, the timing of the reviews shall be as stipulated in the utilization review plans of the facility. In facilities for the mentally retarded and developmentally disabled, the review shall be no less often than every six months, except in the case of those programs which comply with the requirements of section 27.2(g) of this Part. Integrated residential communities are required to comply with subdivision (f) of this section.

(e) Filing in patient's record.

The designated staff members of facilities shall include a copy of the service plan and a written report on the content and results of each review in the patient's clinical record. The written report should include the dates of resolution (or nonresolution) of specific problems.

(f) Program narrative.

Integrated residential communities are required to develop a narrative description for each client served in the program setting. The narrative shall include:

(1) a description of the individual's strengths and needs;

(2) an annual summary encompassing the client's activities and interests in all aspects of life, including work, home social/leisure, community involvement and family involvement wherein the resident's contribution to the program setting is described. The client's activities and role in the community will depend on his or her interests, skill development and community needs;

(3) a description of the approaches that will be used to address each identified need within the integrated 24-hour setting. Staff responsible for implementing components specified in the program narrative shall be identified;

(4) a means of identifying how the client's overall degree of independence, capacity for responsibility and involvement in the community has been facilitated or enhanced; and

(5) for clients who are receiving psychotropic medications, a full description of the reasons justifying the use of such medications and a specific program plan designed to eliminate the need for the use of said psychotropic medications.

(g) Program narrative review and update.

An integrated residential community creates a setting in which consistent, continuous and routine interaction occurs between program staff, who live and work with clients and the clients themselves. Review of the progress of individuals is therefore an ongoing, integral part of the program structure. A specific review or update of each individual's program narrative shall be required on an annual basis. All staff who are responsible for implementation of components of the program narrative shall participate in the annual review. More frequent reassessments of the individual's strengths and needs as part of the program narrative will formally occur only when necessary, as indicated by dramatic changes in client behavior or interest, or by staff concerns that warrant such reassessment.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.4 Requirements for patient care and treatment

(a) Nondiscrimination.

Staff of facilities shall provide services in such a manner as to assure that they do not discriminate against a patient in terms of his or her race, color, sex, creed, religion, age or national origin.

(b) Physical environment.

Staff of facilities shall provide services in such a manner as to assure that the physical environment is safe, sanitary and conducive to effective treatment.

Consistent with a patient's service plan, directors of facilities shall assure patients a reasonable opportunity to associate with any staff member, or patient or members of the general community in order to foster the development of the patient's social competences and preferences. The staff of facilities shall not permit socialization with individual patients to interfere with staff duties.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.5 Medical care and treatment

(a) General.

Directors and staff of facilities shall provide services for mental disability in such a manner that patients receive care and treatment that is suited to their needs and skillfully, safely, and humanely administered with full respect for their dignity and personal integrity.

(b) Periodic physical examinations.

Directors and staff of facilities shall provide each patient with a physical examination at not less than 12-month intervals. A chest X-ray shall be part of the examination for adults of middle age and older. Annual physical examinations for outpatients should be provided through the usual medical resources in the community.

Directors and staff of facilities shall provide each patient, directly or by formal agreement with a qualified provider, emergency medical care for illness or injuries whenever such care is needed.

(d) Serious illness or injury.

Appropriate members of staff of facilities shall immediately notify the legal guardian, family, or close friend of any patient who develops a serious illness or sustains a serious injury.

(e) Physician's orders.

Directors and medical staff of facilities shall assure that treatments which require a physician's order include a termination date and are written and signed within 24 hours after they are issued. A physician should review, rewrite, and sign new orders on the termination date of the old orders.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.6 Family planning services

(a) Availability.

The staff of facilities operated by the Department of Mental Hygiene and the staff of facilities receiving State funds through the department shall arrange for the availability of family planning services for all patients and shall make known to such patients the existence of these services.

(1) Any patient has the right to receive, upon request, information about contraception.

(2) A patient who is 16 years of age or older, or who is the parent of a child, or who has married has the right to receive, upon his or her request, drugs or devices designated to regulate conception.

(3) Any patient under 16 years of age, who is unmarried and is not the parent of a child, requesting such drugs or devices may receive them at the discretion of the facility staff which should consult with the patient's parent or legal guardian whenever practicable.

(b) Sterilization.

Sterilization shall not be performed in any case until reviewed and approved by a medical review board independent of the facility appointed by the regional director.

Each patient has the same right to carry a pregnancy to term as any other citizen. Moreover, each patient has the same right to abortion as any other citizen; and it is the responsibility of the director and staff of facilities to make every effort to see that procedures for abortion are made available in accordance with existing law.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.8 Care and treatment; right to object and appeal

(a) General.

Patients may object to any form of care and treatment and may appeal decisions with which they disagree.

(b) Effect of objection on treatment process.

(1) Emergency treatment. Facilities may give treatment, other than treatment for which informed consent is required by section 27.9 of this Part, at any time to all patients, despite objection in a case where the treatment appears necessary to avoid serious harm to life or limb of the patients themselves or others. Emergency treatment in situations covered by section 27.9 shall be pursuant to such section.

(2) Patients on voluntary or informal status. Patients who are on a voluntary or informal status may not be given treatment over their objection. When any such patient objects to all recommended forms of treatment, the facility director may, after notification to the patient, discharge the patient with recommendations for outpatient care if indicated, or, if appropriate, take steps to convert the patient to involuntary status as set forth in the Mental Hygiene Law. When a patient is discharged because of objection to all recommended forms of treatment, the facility director should have the patient's family notified if feasible.

(3) Patients on involuntary status. Patients held on involuntary status may be given treatment over their objections only if the following conditions are compiled with:

(i) If the objections raised by the patient are disposed of as set forth in subdivisions (c), (d) and (e) of this section.

(ii) If the objection is based on an assertion that the treatment is in conflict with a religious belief of the patient, only if there is a court order authorizing the particular treatment.

(iii) If the type of treatment to be provided required informed consent as required by section 27.9 of this Part, only to the extent allowed by such section.

(iv) If conditions specified in paragraph (1) of this subdivision (need for emergency treatment) are present.

Prior to initiating a treatment procedure over the objection of a patient, such objection must be reviewed by the head of the service. The decision of the head of the service shall be communicated to the patient and his or her representative, if any, and to the Mental Health Information Service, and treatment may be initiated unless the patient or her or his representative chooses to appeal this decision to the director. The appeal procedure shall be in accordance with subdivision (e) of this section.

(d) Patient's right to representative.

Patients have the right to request that legal counsel or other concerned person represent them in the formal appeal procedures authorized in this section.

(e) Appeal.

(1) If the patient or a representative of the patient has appealed to the facility director from a decision of the head of the service with respect to an objection to treatment, the director shall consider the appeal and make a decision. The decision of the director shall be communicated to the patient and the patient's representative, if any, and to the Mental Health Information Service.

(2) A patient shall also have the right to appeal to the director any decision to which he objects relating to his care and treatment at the facility.

(3) In cases of facilities operated by the Office of Mental Health, the patient may appeal from any such decision of the director to the commissioner or his or her designee. Such request for review must be filed with the director within five days, excluding Saturdays, Sundays, and holidays, after notification of the director's decision. The director of the facility shall forthwith transmit the request to the commissioner or his or her designee. When the commissioner or his or her designee decides the issue, the patient, the patient's representative, and the director of the Mental Hygiene Legal Service shall be notified of the decision.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.9 Surgery and certain other treatments

Electro-convulsive therapy, surgery, major medical treatment or the use of experimental drugs or procedures may be administered to any patient only upon the informed consent of the patient or of a person authorized to act on his or her behalf after a full and comprehensive disclosure of potential benefits and the potential of harm. Aversive or noxious stimuli shall not be included as part of any patient's individual service plan unless all conditions for obtaining consent as otherwise set forth in this section are met. Before such stimuli may be included in any service plan, such procedures shall be evaluated by a suitable committee responsible for reviewing and approving the efficacy and humaneness of this element of the patient's service plan. Patients are presumed to have sufficient mental capacity to give consent unless there are facts and substantial reasons to the contrary. The following conditions shall apply:

(a) If a patient is under 18 years of age, consent shall be obtained from the parents or legal guardian. If no parent or legal guardian is available or if such a patient having mental capacity to understand the procedure objects or one of the parents objects to the proposed procedure, the director may not initiate the procedure without a court order authorizing it, except in the case where surgery is indicated by significant danger to life or limb of the patient if the procedure is delayed.

(b) If a patient is 18 years or older but in the opinion of the chief of the service does not have sufficient mental capacity to give consent, authorization for the procedure in question must be obtained from the spouse, a parent, an adult child, or a court of competent jurisdiction. Nothing in this section shall prevent the director from giving consent to surgical procedure under emergency conditions where there appears to be significant danger to life or limb of the patient if the procedure is delayed.

(c) If a patient is 18 years or older and has sufficient mental capacity to give consent, the procedures may be initiated only with the patient's consent. The patient shall have the right, upon his or her request, to have a person of her or his choice present when consent is sought. In cases where a patient withholds consent to a procedure necessary for protection of life or limb, the director shall notify the Mental Health Information Service and may apply for court authorization.

(d) If it is not clear that the patient has sufficient mental capacity to give consent, an independent opinion about the patient's mental capacity must be obtained from a qualified consultant who is not an employee of the facility. After considering the opinion of the consultant, the director will decide whether the patient does or does not have the capacity to give consent and the director may then proceed in accordance with the other provisions of this section. The director shall enter in the patient's clinical record the reasons for this decision.

(e) Each facility director shall develop standard procedures to evaluate the decisions made on the mental capacity of individual patients to give consent. A qualified consultant who is not an employee of the facility shall be a member of the review process.

(f) All patients who object shall have recourse to the procedures for objection and appeal stipulated in section 27.8 of this Part.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.10 Research involving human subjects

(a) Patient participation.

The understanding, prevention and amelioration of mental disability is enhanced by knowledge gained through research. Patients may participate only in research which does not come in substantial conflict with their individual service plans. Participation as a subject in any research project or activity shall not deprive any patient of the rights, privileges and protections provided to all patients by this Part. Directors of facilities shall maintain an up-to-date list of all patients who are involved in research projects and shall make the list available to the Mental Health Information Service representative on request.

(b) Informed consent of patients in research projects.

(1) Informed written consent of patients who participate as subjects must be obtained in accordance with the requirements of section 27.9(a) or (c) of this Part as applicable.

(2) If it is clear that a patient does not have sufficient mental capacity to give consent for participation, consent may be obtained from the facility director if the research project director clearly demonstrates to the institution review committee that (i) the project has overriding therapeutic importance for a condition presented by the patient in question, and (ii) that the project could not be carried out without the participation of patients such as the one in question.

(3) The informed consent required by paragraphs (1) and (2) of this subdivision must be secured in accordance with applicable policies of the department, and the regulations of Federal agencies which are applicable to such research before projects or activities may be approved.

Research projects or activity involving patients are subject to department approval under the policies and procedures of the division of research. Experimental drugs or treatment procedures may be used only after the proposed procedure has been submitted to the division of research for review and specific written approval has been granted in each instance.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 27.11 Participation of patients in teaching activities

Each patient has the right to refuse participation in any staff training activity which is not an integral part of that patient's individual service plan.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

Subchapter C Termination Of Inpatient Care

Part 36 Discharge And Conditional Release Of Patients

N.Y. Comp. Codes R. & Regs. Tit. 14 § 36.1 Statement of philosophy

The long-term rehabilitation of mentally disabled persons is promoted by maintenance of relationships with other persons and agencies in the community, avoidance of institutionalization, and minimization of disruption of life rhythms. The civil rights of mentally disabled persons require that such persons be treated and served in the least restrictive setting possible in which treatment or service goals can be met. Therefore, periods of inpatient service should be as short as possible in accordance with the individual patient's plan of care and treatment. This philosophy will, in many cases, require continued service to a patient on an outpatient basis at the conclusion of inpatient service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 36.2 Definitions

(a) Discharge means the act of ending an inpatient facility's legal responsibility for a patient under articles 29, 31, 33, or 35 of the Mental Hygiene Law. Such act shall not prevent the continuation of a discharged patient in treatment as an outpatient.

(b) Conditional release means the act of ending the inpatient period of service to a patient without ending the facility's legal tie to the patient under articles 29, and 31 or 33 or 35 of the Mental Hygiene Law. The conditions involved in the conditional release are ordinarily that the facility will provide or arrange for the provision of continuing services on an outpatient basis and that the patient will accept such services. Normally, it is preferable for a patient receiving outpatient services to be discharged and treated on only outpatient status. Conditional release includes "convalescent care", "community status" and "family care" as those terms are used in the Social Services Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 36.3 Use of conditional release

(a) The provisions of this section shall not apply to patients conditionally released to family care by department facilities.

(b) Patients who are released from inpatient services who are to be provided outpatient services by the facility should not ordinarily be placed on conditional release but should be discharged from inpatient services and continued in outpatient care and treatment on outpatient status only.

(c) Conditional release may be provided to any patient except an informal patient. Patients retained under provisions of the Criminal Procedure Law or against whom a warrant has been issued, may be conditionally released only with the consent of the district attorney or court.

(d) Voluntary and non-objecting patients may be released conditionally only if they don't object and retained on such status only as long as they do not object to such status.

(1) No voluntary or non-objecting patient may be retained on conditional release status for more than one continuous year. If he or she has no contact with facility staff during a 90 day period within that year he or she must be discharged at the end of the 90 day period.

(2) No voluntary or non-objecting patient conditionally released may be returned to inpatient status in the facility over his objection except in accordance with the Mental Hygiene Law and procedures established thereunder for involuntary admission. A voluntary or non-objecting patient returned to the facility shall be provided with notice of status and rights at the time of return and periodically thereafter, as specified in the section of the law under which the patient was admitted. A copy of each such notice shall be given to the Mental Health Information Service.

(3) The requirements of the Mental Hygiene Law in regard to periodic notice of status and rights shall not apply to a voluntary or non-objecting patient conditionally released and living outside the facility.

(e) Involuntary patients may be retained on conditional release only for the remainder of any period of authorized retention. At the end of such period they may be discharged, if appropriate, or the director may apply to the Supreme Court or county court in the county where the facility is located for an order authorizing further continued retention of such patient. An involuntary patient returned to a facility from conditional release shall be provided with notice of his status and rights and copies of such notice shall be forwarded to the Mental Health Information Service, the original applicant, nearest relative and persons designated by the patient.

(f) A patient discharged after a period of conditional release who requires additional outpatient services may continue in outpatient treatment on outpatient status.

(g) A facility may arrange for the provision of outpatient or nonresidential services by other facilities in the community to former inpatients who need such services regardless of whether they are discharged or conditionally released from inpatient service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 36.4 Community placement of patients discharged or conditionally released

(a) The goal of community placement shall be to provide the most independent residential accommodation which is also physically safe and convenient and appropriate to the needs of the patient.

(1) The facility, in cooperation with county departments of social services and community mental hygiene services and other public and private community agencies or individuals shall take all necessary steps to obtain an adequate supply of safe, convenient and appropriate housing for patients to be discharged or conditionally released.

(2) In some cases, this goal can be met by organization and arrangement of physical facilities and property of the facility when appropriate placement resources in the community are inadequate.

(b) The placement of choice for many patients is in the home with the family which preceded inpatient service. It is recognized that for some patients such a situation never existed, for others no longer exists, and for still others would not be appropriate to the needs of the patient. In these instances, other placements may be appropriate under the following conditions:

(1) If the place of residence is subject to licensure, certification or approval by the Department of Mental Hygiene or other State agency such place of residence shall be currently and validly licensed, certified or approved.

(2) If groups of patients are placed in homes or apartments with no full-time on-site supervision by staff of a provider of services, the placing facility shall consult appropriate local agencies to determine that the building complies with local zoning, building, fire, and safety codes, ordinances and regulations.

(3) If a patient is placed alone in a home, apartment, or room the placing facility shall take care that he is capable of daily living without assistance. This care shall include but not be limited to regular and frequent visits to the patient by facility staff or staff of cooperating agencies to review adjustment during the initial period of community placement.

(c) The individual service plan of each patient to be placed in the community shall include plans for placement and placement shall be made in accordance with such plans. Such planning shall include, but not be limited to:

(1) review of the patient's physical, psychiatric, social and vocational conditions, disabilities and strengths, with particular attention to those related to his or her placement potential;

(2) services to overcome disabilities and capitalize on strengths to enable the least restrictive community placement possible;

(3) consideration of post-release supervision of the patient in the placement residence in addition to the plan for outpatient services to overcome mental disability;

(4) evidence of the patient's participation and that of the patient's family and friends, when appropriate, in the establishment of the placement plan and selection of the placement residence; and

(5) evidence of participation by staff of other agencies in the establishment of the placement plan, the plan for outpatient services and the means of assuring continuity of care, if services and supervision are to be provided by another agency in whole or in part.

Part 37 Procedure When Patients Leave Without Notice To The Facility

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.1 Patients held pursuant to the family court act

The director of a facility in the department and the director of a facility issued an operating certificate by the department shall, with respect to any patient admitted to such facility pursuant to an order of the Family Court, give immediate written notice to the Family Court when any such patient leaves the facility without the consent of the director or is discharged, placed on leave without consent status or transferred. When a patient admitted pursuant to an order of the Family Court to a facility issued an operating certificate by the department is transferred from such facility and admitted to a facility in the department, or is discharged from such facility to be admitted to a facility in the department, the director of the facility to which said person was originally admitted under court order shall notify the director of the facility to which said patient is transferred of the status of the Family Court proceeding involving said patient, and shall notify the Family Court of the patient's transfer or discharge.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.2 Patients in state-operated psychiatric facilities

In responding to absences of patients from State-operated psychiatric facilities, such facilities shall comply with the requirements of the Office of Mental Health policy manual rather than this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.3 Notices to family and others

If a patient leaves a department facility or facility issued an operating certificate without notice or fails to return when expected from a known visit away from the facility, the family or near friend of the patient shall be notified immediately and written record shall be made of the time and method of notification and persons notified. If the facility deems it appropriate, police authorities may be notified and requested to assist in locating the patient.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.4 Patients deemed dangerous

(a) When a inpatient leaves the facility in which he is receiving care and treatment, and without consent of the facility, and the patient's physician or treatment team leader believes or has reason to believe that the patient poses a danger to another person or persons outside the facility, the facility staff shall notify:

(1) the person or persons believed to be in danger;

(2) the local police in the area in which the facility is located;

(3) the police agency with jurisdiction over the area in which the person or persons believed to be in danger resides; and

(4) any person the facility believes would be able to apprise the endangered person that the patient has left the facility without consent. Such notice shall be of the fact that the patient has left the facility without consent, the identity of the patient, the fact that the facility believes the patient is dangerous to another person or persons, the identity of the persons known to be in danger and the nature of the danger. Such notice shall be given as soon as the facility staff know that the patient has left the facility without consent.

(b) Notices required by subdivision (a) of this section shall be given by the patient's physician or, if unavailable, by the patient's treatment team leader. If neither is immediately available, notice may be given by any other member of the clinical staff of the facility.

(c) Notice required by subdivision (a) of this section shall be given by telephone. If contact cannot be made by telephone, the police shall be so notified and a telegram to the person entitled to notice shall be sent immediately. The facility shall request that such a telegram be hand-delivered. A record of notice given pursuant to this section shall be made and retained in the patient's record.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.5 Patients deemed not dangerous

If the patient is deemed not to be dangerous, he shall be sought by the staff using methods appropriate to the patient's condition.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.6 Status changes

If the patient is not located within 24 hours, his status must be changed and reported.

(a) If the patient was an informal patient, he or she must be discharged.

(b) If the patient is on any status other than informal and is deemed to be dangerous, he or she must be placed on leave without consent status.

(c) If the patient is on any status other than informal and deemed not to be dangerous, he or she may be placed on leave without consent status or discharged.

(d) A voluntary or nonobjecting patient who leaves without notice and is placed on leave without consent status shall be discharged after 72 hours if he or she has not been located and returned.

(e) All patients placed on leave without consent status shall be discharged after 30 days if not discharged or returned to the facility prior to that time.

(f) Efforts to locate the patient shall continue as long as required by his or her condition regardless of the status originally or subsequently assigned.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.7 Seeking assistance in case of possible physical harm

If a patient is considered to be in danger of physical harm based on the circumstances of his or her disappearance, e.g., from an outing in wilderness or at a beach, all possible assistance should be sought to aid in locating the patient.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.8 Voluntary, informal and nonobjecting patients

Voluntary, informal and nonobjecting patients who leave without notice and are subsequently located shall not be returned to the facility if they object. If continued inpatient service is deemed necessary, their readmission to the facility or another facility must be on an involuntary form of admission.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 37.9 Encouragement of outpatient services

Patients who leave without notice and are subsequently located but not returned to the facility should be encouraged to accept outpatient services in accordance with Part 36 of this Title, and their status should be changed and reported accordingly.

Subchapter D Safety

Part 45 Firearms

N.Y. Comp. Codes R. & Regs. Tit. 14 § 45.1 Prohibition on firearms

No person shall bring into or possess a firearm at any facility of the Department of Mental Hygiene, or any residential facility which has an operating certificate issued by the department, except with permission of the director of the facility as hereinafter stated.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 45.2 Exceptions

The director of any such facility may grant an exception to the prohibition contained in section 45.1 of this Part in the following cases:

(a) Permission may be granted, in the director's discretion, to employees living on the grounds of the facility who require for hunting purposes shotguns, rifles or similar weapons, but excluding revolvers and concealed weapons. Employees may be permitted to keep such weapons, needed for hunting, in their rooms or homes, provided these weapons shall not be kept in cars, lockers, offices or elsewhere on the grounds. Employees wishing to avail themselves of this exception must receive prior approval from the director.

(b) Police officers of organized police departments and correction officers employed by the Department of Correctional Services who are on the grounds of a facility in the performance of their official duties may be excepted.

Chapter III Department Facilities

Part 57 Transfer Of Involuntary Patients To Authorized Secure Facilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 57.1 Background

(a) The forensic mental health system offers care to New Yorkers pursuant to Mental Hygiene, Criminal Procedure, and Correction Laws. The office ensures that mental health services are available to members of this population at multiple geographical points throughout the forensic system. In addition to the Mid-Hudson Forensic Psychiatric Center and Kirby Forensic Psychiatric Center, the office operates two maximum security regional forensic units: the Rochester Regional Forensic Unit, located on the grounds of the Rochester Psychiatric Center, and the Northeast Regional Forensic Unit, located at Central New York Psychiatric Center.

(b) These forensic facilities and units offer a range and variety of programs and services for the care, treatment, and rehabilitation of persons age 16 and over with mental illness, comparable with those offered at other hospitals in the Office of Mental Health. In addition, they have the staff and physical surroundings to enable them to offer such programs and services to patients requiring closer supervision than can be given at other hospitals.

(c) Patients whose behavior is such as to raise the likelihood of their causing harm to others cannot be given the care and treatment they require at such other hospitals operated by the Office of Mental Health since, for the protection of other patients and staff of such hospitals, they must be kept in closed wards while in a civil facility.

(d) The Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit and Northeast Regional Forensic Unit have specially trained staff and a secure perimeter. As such, these settings permit freer movement, within facility grounds, of patients who pose a risk of harm to others, as well as offer them an opportunity for rehabilitation, recreation, and therapies which, because of their need for close supervision, would not be available for them at the other hospitals.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 57.2 Procedure for transfer to mid-hudson psychiatric center, kirby forensic psychiatric center, rochester regional forensic unit and northeast regional forensic unit

(a) Application. The director of a hospital operated by the Office of Mental Health may make application in writing to the commissioner or his designee for transfer of an involuntary patient at his facility to the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit. Such application must be supported by a statement of facts showing that:

(1) there is a substantial risk that such patient may cause physical harm to other persons, as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm;

(2) reasonable efforts at treatment have been made without eliminating such substantial risk of physical harm to others;

(3) the patient needs the close supervision provided at the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit. A copy of the application together with a copy of this Part shall be given to the patient, to the nearest relative of the patient, if there be known to the director, and to the Mental Hygiene Legal Service. Proof of service of such copy and proof of service of any paper required by this Part shall be placed in the patient's record.

(b) Notice of commissioner's decision. If the commissioner or his designee finds that the application sets forth facts justifying the transfer of the patient to the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit he shall so notify the director who made the application. Such director shall thereupon give notice of the proposed transfer of such patient to the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit, to the persons served with a copy of the application. The notice shall have attached thereto a copy of the determination of the commissioner or his designee and shall state that such transfer will be effected unless, within 48 hours of service of the notices, exclusive of Saturdays, Sundays, and holidays, the patient, or anyone on his behalf, files written objection to the transfer with such director.

(c) Objection. If the patient or anyone on his behalf files written objection to the proposed transfer with the director of the facility, the patient or his representative may substantiate the objection by filing, within 72 hours of service of the notices of proposed transfer, exclusive of Saturday, Sundays, and holidays, appropriate written arguments supported by documents, statements, and affidavits with the director. The director shall send the notice of objection and any material submitted by the patient or the person filing an objection on the patient's behalf to the commissioner or his designee. The director may also send to the commissioner or his designee written arguments supported by documents, statements, and affidavits in support of his application, provided that a copy of such material be provided to the persons required to be given notice of the proposed transfer.

(d) Determination. If no objection is received to the notice of proposed transfer, the director shall so notify the commissioner or his designee who may then issue an order of transfer. If objection has been filed, the commissioner or his designee shall designate a qualified psychiatrist not on the staff of the facility making the application who shall assist him in evaluating the application. The qualified psychiatrist shall personally visit the hospital and shall interview the patient, the patient's physician, the director, and others as he deems necessary and shall make a report and recommendation to the commissioner or his designee. A copy of such report shall be sent to the persons served with notice of the contemplated transfer. The commissioner or his designee shall give due consideration to the arguments and supporting material presented by the respective parties as well as the report of the designated qualified psychiatrist and shall decide the matter, granting or denying the application for transfer. If the decision is to grant the application, an order for transfer shall be issued. The decision and order of the commissioner or his designee shall be communicated to the director and the transfer may thereupon be effected at a time not less than 24 hours, excluding Saturdays, Sundays, and holidays from the time that notice of such decision and order are served upon the persons previously served with notice of the contemplated transfer.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 57.3 Immediate transfer

(a) An application may be made for the immediate transfer of a patient to Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit. In such case, the application shall set forth all the facts required by section 57.2 of this Part and, in addition shall set forth facts showing that the hospital where he is being held cannot manage the patient and that a delay in the transfer would seriously jeopardize the safety of the patient, other patients at the facility, or employees thereof. A copy of the application shall be served upon the nearest relative of the patient, if there be any known to the director, and upon the Mental Hygiene Legal Service. If the commissioner or his designee approves the application, he shall order, within 48 hours of receipt of the application the immediate transfer of the patient. The order shall contain a provision that the transfer is conditional upon full review by the commissioner or his designee. A copy of the order shall be served upon the patient, the Mental Hygiene Legal Service, and any relative served with a copy of the application.

(b) Within 24 hours of the patient's arrival at Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit, the director of the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Psychiatric Center or Central New York Psychiatric Center shall serve notice upon the patient, the nearest relative of the patient, if there be any known to him, and upon the Mental Hygiene Legal Service of the patient's rights to object to the transfer. The procedure set forth in section 57.2 of this Part shall apply. If the decision of the commissioner or his designee is to uphold the transfer, he shall issue an order confirming the transfer. If the decision is to the contrary, he shall rescind the transfer.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 57.4 Review of patient's condition

(a) An involuntary patient transferred to Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit shall be retained at such hospital only as long as his condition requires retention at such hospital in accordance with the criteria set forth in section 57.2(a) of this Part.

(b) The director of Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Psychiatric Center or Central New York Psychiatric Center shall comply with the provisions of article 31 of the Mental Hygiene Law and apply, in accordance with such article, for the required periodic orders authorizing retention of involuntary patients. In addition, such director shall periodically review the need for retention in the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit of each involuntary patient and shall file a report with the commissioner or his designee for each such patient at intervals of not more than six months setting forth reasons why the patient needs continued retention at such facility. A copy of such report shall be served on the patient and the Mental Hygiene Legal Service.

(c) Involuntary patients who no longer need retention in the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit but who still require involuntary care and treatment shall be transferred to another hospital in the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 57.5 Transitional provisions

Each involuntary patient previously transferred to the Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit who is a patient therein on the effective date of this Part, shall be served within one month of such date with a copy of this Part, a statement setting forth reasons why such patient needs continued retention therein, and a notice of the patient's rights to object to further retention at such facility. A copy of such statement and notice shall be served upon the nearest relative of the patient, if there be any known to the director, and upon the Mental Hygiene Legal Service. If there is no written objection made by or on behalf of the patient, the patient may be retained at Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit subject to the provisions of section 57.4 of this Part. If there is an objection, the procedure set forth in sections 57.2 and 57.3 of this Part shall apply.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 57.6 Right to court review

Nothing in this Part shall affect any right of the patient or someone acting on his behalf to initiate a proceeding allowed to him by law before a court of competent jurisdiction to challenge his transfer to or retention at Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 57.7 Return to sending or other appropriate facility

The commissioner or his designee may, when supported by documentation that retention at Mid-Hudson Forensic Psychiatric Center, Kirby Forensic Psychiatric Center, Rochester Regional Forensic Unit or Northeast Regional Forensic Unit is no longer appropriate, authorize the return of a patient to the sending facility or other appropriate facility.

Part 62 Fees For Service-office Of Mental Retardation And Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 62.2 Charges for use of space on state-owned or leased property by nonstate government entities

(a) All nonstate government entities occupying space in buildings owned or leased by the State shall be charged a fee or rental for that space in conformance with this Part and with policies and procedures established by the commissioner and approved by the Director of the Budget.

(1) Nonstate government entities include, but are not limited to municipal government agencies, authorities and corporations; not-for-profit corporations; private business interests and Federal government agencies.

(2) Approval for long-term occupancy of space shall rest with the commissioner and the Director of the Budget. Long-term occupancy is defined as the continual occupancy for more than five days by a nonstate government entity whether or not for the purpose of providing programs or services for clients and/or employees and where such space will not be used for any other purpose than that specified in the application for use.

(3) Approval for temporary use of space may rest with the administrator of the facility; a fee may be charged at the discretion of the administrator in conformance with current policies and procedures issued by the commissioner. Temporary occupancy is defined as one-time or occasional use of facility space or use for five or fewer consecutive days.

(4) In-kind services in lieu of fees or rentals (monetary consideration) may be agreed to in accordance with paragraph (5) of this subdivision.

(5) Standards for calculating fees or rentals and for determining the adequacy and/or appropriateness of in-kind services shall be determined or approved by the Director of the Budget.

(6) Space made available for use by nonstate entities shall not currently be available for sale or lease as surplus.

(7) A fee or rental shall be charged through the execution of a revocable permit or lease for space occupied.

(8) Either through such revocable permit or lease, charges shall be made for ancillary costs including but not limited to utilities, maintenance and security.

(9) The occupant shall be charged for all renovations made on behalf of said occupant.

(10) Nonstate government entities occupying space on August 1, 1982, which is owned or leased by the State, shall be charged a fee or rental for such space immediately upon determination of such fees or rentals by the Office of Mental Retardation and Developmental Disabilities and which have been reviewed and approved by the Director of the Budget. Full implementation of such charges shall take place no later than July 1, 1983.

(11) Nonstate government entities occupying space before August 1, 1982, which is owned or leased by the State, need not be charged for the period prior to this date unless an existing agreement already provided for that entity to pay such charges or other considerations. Existing agreements may be modified to be made consistent with the provisions of paragraph (10) of this subdivision. However, existing agreements for charges or other considerations as of August 1, 1982 may not be cancelled or modified without the approval of the Director of the Budget.

(b) Exemptions to the provisions of this Part are as follows:

(1) exemptions granted as a result of a specific request pursuant to the following provisions:

(i) application for such an exemption shall be made to the commissioner on an individual basis, and shall be accompanied by documentation justifying the request for exemption;

(ii) after approval by the commissioner, each request shall be reviewed and approved by the Director of the Budget; and

(iii) each such exemption shall be granted on an individual basis;

(2) providers of child care services, which are subject to policies set forth by the Director of the Budget; and

(3) employee housing, which is subject to policies set forth by the Director of the Budget.

Chapter IV Regulation And Quality Control

Subchapter A General Provisions

Part 70 Classes Of Operating Certificates

N.Y. Comp. Codes R. & Regs. Tit. 14 § 70.1 Background and intent

(a) This Part is intended to establish an all-inclusive set of categories, named classes, to which all providers of services to the mentally disabled subject to the requirement to obtain an operating certificate from the Commissioner of Mental Hygiene will be assigned, for purposes of determining compliance with the most appropriate standards of operation and construction pursuant to the issuing of an operating certificate.

(1) A provider of services which has been issued an operating certificate to engage in the operation of any facility may designate itself or that facility to the public by any term it chooses, except that no such designation shall denote any class herein established which is not specified in the operating certificate of that facility.

(2) No entity which is ineligible to be issued an operating certificate in accordance with the Mental Hygiene Law and this Title shall designate itself to the public by terms which denote any class herein established or which express or imply any approval by the department.

(b) The statutory requirement that an operating certificate be obtained by certain providers of services to the mentally disabled is applicable on the basis of three factors: characteristics of the persons served, characteristics of the services provided, and the auspices of the provider of services.

(1) The primary basis for the requirement of an operating certificate is that the subject activities are conducted primarily or exclusively for persons who are mentally disabled, as that term is defined in the Mental Hygiene Law. Accordingly, those organized activities of life in which mentally disabled persons engage on the same basis as others not so handicapped are not intended to be included. Also, neither those services to persons whose disabilities are primarily of a nature other than mental, nor those services to persons whose mental problems are not so disabling as to conform to the definitions of mental illness, mental retardation and alcoholism in the Mental Hygiene Law, are intended to be included.

(2) The secondary basis for the requirement of an operating certificate is that the subject activities are sufficiently specialized, technical and potent as to warrant their regulation in the interest of their safe and effective use for the benefit of persons not necessarily capable of assuring this for themselves. The issuance of an operating certificate is intended to signify that a provider has met minimum standards for conditions conducive to safe and effective operation and to establish the accountability of the provider for operation in accordance with those standards. Accordingly, any activities however well-intended which require no expertise and are free of risk are not intended to be included.

(3) The tertiary basis for the requirement of an operating certificate is that the subject activities are not subject to comparable regulation, in accordance with statutes other than the Mental Hygiene Law, as administered by agencies other than the Department of Mental Hygiene. Accordingly, the private practice of a profession, whether on an individual, partnership or corporate basis, whereby outpatient or nonresidential services to the mentally disabled are provided, is not intended to be included if that practice is authorized in accordance with appropriate professional licensure or certification and registration under the Education Law. Also, institutions of learning chartered or established in accordance with the Education Law, whose students provide services to the mentally disabled incidental to a curriculum of education and training in professional disciplines, are not intended to be included.

(c) Providers of services to the mentally disabled which are issued an operating certificate by the Commissioner of Mental Hygiene nevertheless remain subject to all applicable Federal, State and local laws, regulations and ordinances. In those matters which are subject to more than one jurisdiction or regulatory requirement, the most strict provisions shall apply. In the event that any other legal requirements are contradictory to those in the Mental Hygiene Law or this Title, it is incumbent upon the certificate holder to bring this information to the attention of the department.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 70.2 Legal base

The Mental Hygiene Law, section 13.03, authorizes the commissioner to adopt regulations establishing classes of operating certificates. Section 13.01 sets forth the applicability of and exceptions to the general requirements for operating certificates. Section 1.05 sets forth the statutory definitions of terms used in this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 70.3 Definitions pertaining to this chapter

(a) A class shall mean a category of facilities subject to the issuance of an operating certificate and distinguished by certain common characteristics of persons served, programs of services provided, staff skills, and premises.

(b) An operating certificate shall mean a written document, pertinent to the appropriate class, conveying to the public the authorization by the commissioner of a provider of services to operate programs stated thereon through specified facilities.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 70.4 Classes of operating certificates

(a) Schools for the mentally retarded shall be a class of operating certificate. All facilities for the residential care, treatment, training or education of the mentally retarded which are required by law to be operated only in accordance with an operating certificate issued by the commissioner shall be eligible for an operating certificate only in the schools for the mentally retarded class.

(b) Hospitals for the mentally ill shall be a class of operating certificate. All facilities for the inpatient care or treatment of the mentally ill, including but not limited to facilities maintained by a political subdivision of the State and any part of a general hospital operated for the purpose of providing inpatient services to the mentally ill, which are required by law to be operated only in accordance with an operating certificate issued by the commissioner shall be eligible for an operating certificate only in the hospitals for the mentally ill class.

(c) Alcoholism facilities shall be a class of operating certificate. All facilities for the inpatient care and treatment of alcoholics, including but not limited to any part of a general hospital operated for the purpose of providing inpatient services to alcoholics, which are required by law to be operated only in accordance with an operating certificate issued by the commissioner shall be eligible for an operating certificate only in the alcoholism facilities class.

(d) Outpatient facilities for the mentally disabled shall be a class of operating certificate.

(1) All facilities for the outpatient or nonresidential examination, diagnosis, care, treatment, rehabilitation, or training of the mentally ill, the mentally retarded, or alcoholics, or any combination thereof, which are required by law to be operated only in accordance with an operating certificate issued by the commissioner shall be eligible for an operating certificate in the outpatient facilities for the mentally disabled class.

(2) Any facility eligible for an operating certificate in the outpatient facilities for the mentally disabled class which is operated in conjunction with an inpatient or residential facility eligible for an operating certificate may be included in the latter operating certificate issued to a single provider of services.

(e) Community residence for the mentally disabled shall be a class of operating certificate. All facilities for the residential care, training, and supervised living of the mentally disabled which are required by law to be operated only in accordance with an operating certificate issued by the commissioner shall be eligible for an operating certificate in the community residence class.

(f) Intermediate care facility for the developmentally disabled shall be a class of operating certificate. All facilities for the residential care, supervision, habilitation and treatment of the developmentally disabled, which meet the requirements for medical assistance participation as intermediate care facility for the developmentally disabled, and which are required by law to be operated only in accordance with an operating certificate issued by the commissioner, shall be eligible for an operating certificate only in the intermediate care facility for the developmentally disabled class.

(g) Specialty hospital shall be a class of operating certificate. All facilities for the time-limited residential care and the provision of services by or under the direction of a physician for the treatment of health-related problems associated or present with developmental disabilities, which are required by law to be operated only in accordance with an operating certificate issued by the commissioner, shall be eligible for an operating certificate only in the specialty hospital class.

(h) Diagnostic and research clinic shall be a class of operating certificate. All facilities for the comprehensive behavioral and medically related assessment and diagnostic services to developmentally disabled persons, or persons suspected of being developmentally disabled, which meet the requirements for medical assistance participation and which are required by law to be operated only in accordance with an operating certificate issued by the commissioner, shall be eligible for an operating certificate only in the diagnostic and research clinic class.

Subchapter C Construction Of Facilities

Part 77 Standards For Physical Facilities Of Hospitals For The Mentally Ill, Schools For The Retarded, And Alcohol Facilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.1 Introduction

(a) As used in this Part "physical plant" or "physical facilities" refer to all buildings, structures, land, land improvements or other appurtenances on the site of a hospital for the mentally ill, residential school for the mentally retarded, or alcoholism facility certified or to be certified or constructed in accordance with article 13 of the Mental Hygiene Law.

(b) This Part shall not apply to any facility operated as part of a general hospital as defined in section 2801 of the Public Health Law. Such facilities shall meet requirements established in the State Hospital Code.

(c) This Part shall not apply to any facility established by article 7 of the Mental Hygiene Law or Part 55 of this Title.

(d) This Part shall apply to all existing facilities in these classes in accordance with the provisions of section 77.11 of this Part.

(e) Living units are those places within the facility wherein patients or residents sleep or engage in unorganized activity including bedrooms, lounges, bathrooms, corridors, and other spaces appurtenant thereto.

(f) As used in this Part waive or waiver shall mean the act of removing the application to a facility of a specific provision of this Part upon application by the facility and for good cause shown.

(g) As used in this Part defer or deferral shall mean the act of postponing application to a facility of a specific provision of this Part upon application by the facility showing a plan designed to produce compliance at a scheduled future time.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.2 The site and space utilization plan

(a) Each hospital for the mentally ill, school for the mentally retarded and alcoholism facility shall prepare and maintain a site and space utilization plan for all existing physical facilities utilized whether on the main site or elsewhere. The site and space utilization plan and amendments thereto shall be submitted to the department. The site and space utilization plan shall contain all information as specified in this section.

(b) The site and space utilization plan shall include a description of the site specifying the following:

(1) The location of the facility, and specification of the local regulatory authorities governing zoning, planning, health, fire prevention and sanitation.

(2) Means of access to the facility, including public and private roads and public transportation serving the site.

(3) The physical properties of the site including:

(i) A property map which indicates the property lines and existing improvements.

(ii) The operation of the facility under a zoning ordinance or special permit, if applicable.

(iii) The characteristics of the immediate neighborhood of the facility including the residential composition and land use surrounding the property.

(iv) The circulation through the property including the size and materials of the roads and parking areas and existence of any public thoroughfare on the site.

(v) The size and capacity of electric service, water, gas, and sewage facilities.

(vi) Size and location of existing outdoor recreation areas such as pools, playgrounds and gardens.

(vii) The location and physical description of the existing buildings, including dimensions and architectural features, and existence of any bodies of water, natural woods, precipices, or other natural features posing potential hazard. Photographs should be included when appropriate.

(viii) Areas consigned to others for use unrelated to the operation of the facility.

(c) All existing buildings on the site of the facility shall be described in detail. The description shall specify for each:

(1) The name of the building and number, if any.

(2) Its primary use by the facility.

(3) A general description of the construction type and materials, mechanical systems in use and connections with facility systems and the building's size.

(d) Floor plans drawn to scale shall be submitted and all major spaces within each building must be tabulated and briefly analyzed in terms of use. The analysis should indicate the name, specialized function, and intensity of use of each major space. For example:

| Name | Area | | | --- | --- | --- | | Lounge | 600 sq. ft. | Used by ambulatory patients primarily during evening hours. Kitchenette and storage adjacent. 12 patients peak use. |

(e) The site and space utilization plan shall describe proposed improvements to the property, if any, whether requiring approval of the commissioner in accordance with Part 74 of this Title or not. These descriptions shall include the following:

(1) Type of improvement; whether an addition, remodeling of the existing facility, or new building to be constructed.

(2) A time schedule which indicates the expected completion date of construction phases.

(3) Space analysis of the proposed improvements should be tabulated as in subdivision (d) of this section.

(4) The number of patients or residents ultimately to be served by the improvements should be specified.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.3 Codes and regulations

(a) The entire physical plant of a hospital for the mentally ill or residential school for the mentally retarded or alcoholism facility shall be constructed and maintained to be structurally sound, physically safe, sanitary, convenient and comfortable. To meet these requirements, all applicable provisions of the following codes and guides, as amended, shall be complied with:

(1) the Building Code of New York State and the Property Maintenance Code of New York State (Title 19 NYCRR Chapter XXXIII, Subchapter A, Parts 1221 and 1226);

(2) Life Safety Code 101 of the National Fire Protection Association. The commissioner may waive the application of specific provisions of the Life Safety Code to an existing facility for such periods as he deems appropriate, which provisions if rigidly applied would result in unreasonable hardship upon a facility, but only if such waiver will not adversely affect the health and safety of the patients or residents;

(3) the American Society of Heating, Refrigeration and Air Conditioning Engineers Guide;

(4) the Illuminating Engineering Society Handbook;

(5) Food Service Sanitation Publication #934 of the United States Department of Health, Education and Welfare;

(6) ASA Z66.1 American Standards Specifications to Minimize Hazards to Children from Residual Surface Coating Material;

(7) USA Standards Institute Specifications for Making Buildings Accessible to and Usable by the Physically Handicapped;

(8) New York State Department of Environmental Conservation requirements for waste disposal and air quality;

(9) New York State Department of Health requirements for water supply and sewage disposal.

(b) All local codes, ordinances and regulations governing land use, construction, safety, health, sanitation, fire prevention and zoning must be complied with. Written evidence of compliance as determined by appropriate local inspectors must be provided. Compliance with local requirements shall not be sufficient if any such requirement is less than any provision of a code specified in subdivision (a) of this section.

(c) If part of the physical plant is to be used for nonresidential programs, the space for such programs must be described in the site and space utilization plan and must comply with Part 85 of this Title. If residents and nonresidents are mixed in programs, space shall be provided for nonresidents in size and design required by this Part.

(d) For residential schools for the mentally retarded, all applicable provisions of the State Building Construction Code and the National Fire Protection Association Life Safety Code 101 are as follows:

(1) For persons deemed capable of self-preservation as defined in section 686.2 of this Title:

(i) For those living units which are planned to house 15 or fewer residents, exclusive of staff:

(a) The NYS Building Construction Code, latest edition (9 NYCRR Subtitle S, Chapter I, Occupancy Group B1), applicable to multiple dwellings.

(b) Chapter 11 (1973 edition) Life Safety Code of the National Fire Protection Association (NFPA 101), as it applies to lodging and rooming houses.

(ii) For those living units which are planned to house, or which do house 16 or more residents, exclusive of staff:

(a) The NYS Building Construction Code, latest edition (9 NYCRR, Subtitle S, Chapter I, Occupancy Group C 6.2), as it applies to institutions.

(b) Chapter 10 (1973 edition), Life Safety Code of the National Fire Protection Association (NFPA 101), as it applies to health care occupancies.

(2) For persons deemed not capable of self-preservation:

(i) The NYS Building Construction Code, latest edition (9 NYCRR, Subtitle S, Chapter I, Occupancy Groups C 6.2), as it applies to institutions.

(ii) Chapter 10 (1973 edition), Life Safety Code of the National Fire Protection Association (NFPA 101), as it applies to health care occupancies.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.4 Safety and sanitation

(a) There shall be adequate insect screens on all windows to be used for ventilation.

(b) Domestic hot water shall be generated and circulated at 110 degrees Fahrenheit without the use of thermostatically controlled mixing valves and be equipped with a high temperature alarm providing both auditory and visual signals having a set point of 120 degrees Fahrenheit located in an office or other location normally occupied by supervising personnel. Shower mixing valves shall be of the pressure balance type. A separate source of hot water or booster heater shall be provided for kitchens and other appliances and fixtures requiring temperatures in excess of 110 degrees Fahrenheit.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.5 Maintenance and operation of the physical plant

(a) Plumbing.

(1) A supply of hot and cold water adequate in volume and pressure shall be provided to all areas of the facility.

(2) The water system shall not be operated with physical connections to other systems that may permit contamination of the water supply.

(3) All plumbing fixtures shall be kept in working order at all times.

(b) Heating, ventilating and air conditioning systems shall be maintained and operated in a manner which will prevent the spread of infection.

(1) Air shall not be circulated from kitchen and dishwashing areas, toilets and bathrooms, janitor's closets and soiled linen rooms to any other part of the facility.

(2) Air filtration equipment shall be cleaned and serviced at regular intervals as prescribed by the manufacturer.

(1) The entire facility, including but not limited to the floors, walls, windows, doors, ceilings, fixtures, equipment and furnishings, shall be maintained in good repair, clean and free of insects, rodents and trash.

(2) Cleaning compounds and hazardous substances shall be properly labeled and stored secure from access by patients or residents.

(3) Solid wastes, including garbage, rubbish and other refuse shall be collected, stored and disposed of in a manner that will prevent the transmission of disease and not create a nuisance or fire hazard, nor provide a breeding place for insects or rodents.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.7 Design and space requirements-all facilities

(a) General.

(1) The design and furnishing of all facilities shall promote a noninstitutional homelike environment, provide for individual privacy and further the effective operation of all programs.

(2) The physical plant shall be designed with primary consideration given to meeting program needs of the patients or residents and only secondarily for [cont'd] the convenience and efficiency of staff or economy of construction and operation.

(3) Individual buildings may be self-sufficient entities or have special purposes as may be necessitated by the facility's program and indicated in the site and space utilization plan.

(b) Support and service space.

(1) A separate designated support area shall be provided in conjunction with living units for each 60 beds and shall include:

(i) Housekeeping work and storage space.

(ii) Storage area for clean linen.

(iii) Janitorial closet including slop sink, when necessary, and space for storage of janitorial supplies.

(iv) Space for storage of out of season clothing if necessary.

(2) Kitchen and dining areas.

(i) Space shall be set aside and furnished for dining in the amount of 15 square feet per patient or resident. Such space may be used for other appropriate purposes between meals if such use is approved by the department.

(ii) Kitchen space shall be sufficient in amount, design and equipment to meet the needs of the patient or resident population. If a commercial food service is to be used or if meals are to be prepared by an adjacent facility, space and equipment shall accommodate the requirements for sanitary storage, processing, handling and serving.

(3) The following engineering, maintenance and equipment areas shall be provided and shall be secure from intrusion by unauthorized persons:

(i) A storage room or area for building maintenance equipment, tools and supplies.

(ii) A refuse room or other approved area for holding trash prior to disposal.

(iii) An equipment storage room for grounds maintenance equipment and supplies.

(c) Offices shall be provided for administrative staff as appropriate. Offices shall be provided for program staff whose functions require them.

(d) A separate area sufficient in size and properly furnished and equipped shall be provided for storage and maintenance of individual patient or resident case records.

(1) Such space shall include storage area, work areas and office space for appropriate staff.

(2) Location, design and equipment shall be appropriate to maintain records secure from traffic, theft and unauthorized inspection, and secure from damage from fire or water.

(e) Offices or work areas shall be provided for use by the representative of the Mental Health Information Service. The amount and design of such space shall be as required by the Mental Health Information Service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.8 Design and space requirements-hospitals for the mentally ill

(a) Bedrooms shall provide at least 80 square feet per patient in multiple sleeping rooms and not less than 100 square feet in single rooms.

(1) The maximum number of beds in any room shall be four.

(2) Single bedrooms shall be provided for a minimum of 10 percent of the total capacity of the facility.

(3) Each patient bedroom shall be at or above grade and shall be an outside room.

(4) In existing facilities, up to 15 percent of the required 80 or 100 square feet may be waived by the commissioner for cause based on such factors as out of bedroom space available, program schedules and others.

(b) Closets or wardrobes within the room shall be provided for each individual's clothing.

(d) Walls or partitions defining each bedroom shall extend from floor to ceiling.

(e) Bathrooms shall be provided in living units in sufficient numbers and locations to insure privacy and convenience. A water closet, lavatory and tub or shower shall be provided for each six patients. No bathroom shall include more than two water closets, two lavatories and two tubs and/or showers.

(f) Lounge, communal living or other non-program space shall be provided in living units as appropriate.

(1) Such separate spaces shall be provided in sufficient numbers for use by no more than 12 patients.

(2) Such spaces shall be adjacent to or readily accessible from the bedrooms of patients who use them.

(3) Such space shall be provided at the rate of 20 square feet per patient.

(4) Such spaces shall be for the leisure time use of patients and shall not be considered in determining compliance with program space requirements.

(g) Offices or work areas for nurses and other staff shall be provided in conjunction with living units. Such offices or work areas shall be provided in sufficient locations and numbers to facilitate effective supervision and monitoring of patient activity. When necessary or appropriate, such office or work area shall include facilities for the proper storage, preparation and administration of medications.

(h) Some living units shall be constructed or modified to meet needs of physically handicapped individuals consistent with the anticipated number of such patients to be admitted to the facility.

(i) Program space.

(1) The facility shall provide space of sufficient size and type and set aside for use for planned organized program activities.

(i) A minimum of 50 square feet of program space per patient shall be provided and appropriately designed and equipped for vocational, occupational and organized group activities.

(ii) A minimum of 20 square feet of space per patient shall be provided and appropriately designed and equipped for organized indoor recreational activities.

(iii) Program space may be provided in premises detached and separate from those containing living units, if patients are able to move freely enough to use such space.

(2) If electro-convulsive therapy is administered, resuscitation facilities and a recovery room shall be provided as part of the electro-convulsive therapy facilities.

(3) Separate individual interview rooms shall be provided if required by the program and if staff offices are not suitable or sufficient for this use.

(4) Separate examining rooms of appropriate size and appropriately furnished and equipped shall be provided as required by the program for physical, dental, nursing, psychology and other purposes.

(5) Program space shall be designated in the site and space utilization plan.

(6) Psychiatric hospitals serving children of school age and providing a classroom education service shall provide classroom space in a ratio of at least 50 square feet per child. Other program, lounge or non-program, and recreation space for use by children shall be appropriately designed and equipped for use by such persons.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.9 Design and space requirements-residential schools for the retarded

(a) Bedrooms shall provide at least 80 square feet per resident in multiple sleeping rooms and not less than 100 square feet in single rooms.

(1) The maximum number of beds in any room shall be four.

(2) In existing facilities, up to 15 percent of the required 80 and 100 square feet may be waived by the commissioner for cause based on such factors as out-of-bedroom space available, program schedules, and others indicating reduced need for bedroom space.

(b) Each resident bedroom shall be at or above grade and shall be an outside room.

(d) Walls or partitions defining each bedroom shall extend from floor to ceiling.

(e) Each resident shall be provided with:

(1) A separate non-institutional bed of proper size and height for the convenience and comfort of the resident; and,

(2) A clean comfortable mattress; and,

(3) Bedding appropriate for season and climate; and

(4) Individual non-institutional furniture including but not limited to a chest of drawers, a table or desk and chair, and a closet or a wardrobe unit combining any or all of the above; and

(5) An individual space for storage of personal possessions and playthings.

(f) Bathrooms shall be provided in living units in accordance with the following:

(1) A water closet, lavatory and tub or shower shall be provided for each six residents. No bathroom shall include more than two water closets, two lavatories and two tubs and/or showers.

(2) Bathrooms shall be located for the convenience and accessibility of the residents served.

(3) Bathrooms shall be designed and equipped to ensure appropriate privacy of users and adapted to training in self-toileting, as appropriate.

(g) Space for staff shall be provided in living units in amount and location as required by the program and characteristics of residents. Each separate building wherein residents sleep shall have at least one such office or work area.

(h) Some living units shall be modified for use by the physically handicapped as required by the intended or anticipated number of such residents.

(i) Lounge, communal living or other non-programmed space shall be provided in living units.

(1) Such spaces shall be provided in sufficient numbers for use by no more than 12 residents.

(2) Such spaces shall be adjacent to and accessible from the bedrooms of the residents who use them.

(3) Such space shall be provided at the rate of 20 square feet per resident.

(4) Such spaces shall be for the leisure time use of residents and shall not be considered in determining compliance with program space requirements.

(j) The facility shall provide space of sufficient size and appropriately designed and equipped for planned organized program activities.

(1) Classrooms for the provision of educational services shall be provided at the rate of 50 square feet per resident of school age (five-21).

(2) Space for the provision of services to adults such as vocational rehabilitation and social rehabilitation shall be appropriately designed and equipped for such purposes and be provided at the rate of at least 50 square feet per adult (21 or older) resident.

(3) Space for educational and vocational services may be distributed in alternative ways based on differing program goals as justified in the site and space utilization plan and program policies.

(4) Spaces for special services such as physical therapy and speech and hearing therapy shall be designed and equipped as required by the services to be provided and used for those services only.

(5) Separate space appropriately designed and equipped shall be available for organized indoor therapeutic recreation activities at the rate of at least 20 square feet per resident.

(6) Bathrooms including water closets and lavatories shall be provided near program areas in a ratio of each of these fixtures of one for each 12 residents.

(7) There shall be at least one appropriately designed and furnished area for examination and treatment of physical illnesses of and injuries to residents.

(8) Spaces shall be available for individual counseling and assistance to residents and their families. Staff offices may be used for this purpose if appropriate.

(9) Program space may be provided off the site of the facility as appropriate. Use of such space shall be completely described and justified in the program policies and site and space utilization plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.10 Design and space requirements-alcoholism facilities

(a) Alcoholism facilities providing detoxification services to acutely medically ill alcoholics shall meet all applicable requirements of Part 712 of the State Hospital Code (10 NYCRR Part 712).

(b) All other alcoholism facilities shall meet the following requirements:

(1) Bedrooms shall provide at least 80 square feet per patient in multiple sleeping rooms and not less than 100 square feet in single rooms.

(2) The maximum number of beds in any room shall be four.

(3) Closets or wardrobes shall be provided within the room for each individual's clothing and other personal property.

(4) Bathrooms shall be provided in living units in sufficient numbers and locations to ensure privacy and convenience. One watercloset, one lavatory and one shower or tub shall be provided for each six beds.

(5) Offices or work areas for staff shall be provided in living units. Such offices or work areas shall be provided in sufficient locations and numbers to facilitate effective supervision and monitoring of patient activity. When necessary or appropriate, such office or work area shall include facilities for the proper storage, preparation and use or dispensing of medications and emergency medical supplies and equipment.

(6) The facility shall provide space of sufficient size and type set aside for use for planned organized program activities.

(i) A minimum of 50 square feet per patient shall be provided and appropriately designed and equipped for vocational, social and organized group activities.

(ii) A minimum of 20 square feet of space per patient shall be provided and appropriately designed and equipped for organized indoor recreational activities.

(iii) Program and recreation space may be provided in premises detached and separate from those containing living units, if patients are able to move freely enough to use such space. At least 20 square feet per patient shall be provided in residence buildings easily accessible from bedrooms to be used for a lounge, communal living or other non-program purposes.

(8) Separate individual interview rooms shall be provided if required by the program and if staff offices are not suitable or sufficient for this use.

(9) Separate examining and treatment rooms of appropriate size and appropriately furnished and equipped shall be provided as required by the program for medical, dental, nursing, psychology and other services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 77.11 Non-conforming facilities

(a) Any facility which has a valid license or operating certificate on the effective date of this Part, which does not meet all the requirements of this Part shall not be relicensed or recertified unless the license or certificate holder applies for and is granted a deferral of any requirement not met. No deferral shall be granted unless the facility has submitted a complete and adequate site and space utilization plan prepared in accordance with section 77.2 of this Part.

(b) Deferral of requirements of the life safety code.

(1) No applicable requirement of the Life Safety Code 101 may be deferred for more than one year after receipt of the request for deferral, except as approved by the commissioner to reflect estimated time necessary to complete construction which may be involved.

(2) Deferral may be granted only if

(i) Compensatory devices, actions and procedures will be implemented to render the physical plant as safe as possible during the period of deferral; and

(ii) A plan is submitted for replacement, renovation, reconstruction, alteration or improvement which will result in complete compliance with all applicable life safety code requirements within the period during which deferral is granted.

(c) Deferral of any other requirements not waived as provided in this section may be granted upon submission of plans and schedules for replacement, renovation, reconstruction, alteration or improvement of facilities which will result in compliance with all requirements upon completion.

(d) Denial of an application for deferral shall be made only after the applicant has been afforded a hearing in accordance with the provisions of section 73.4 of this Title and, if such hearing is held, on the basis of the findings of such hearing.

(e) Effect of denial of application for deferral. In the event that an application for deferral is denied, the facility shall have up to one year to make whatever changes in facility operations or physical plant are necessary to comply with any requirement of this Part not deferred. At the conclusion of this period, if the facility is not in compliance, the commissioner, in his discretion, may revoke the facility's operating certificate, limit the operating certificate in terms of the kind or number of patients or residents, or allow the facility additional time to comply.

Subchapter D Operation Of Facilities

Part 81 Operation Of Schools For The Mentally Retarded

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.1 Background and intent

(a) This Part is intended to promote the application of the most effective methods by which the mentally retarded may be helped to achieve maximum self-sufficiency while assuring their safety and general well-being.

(b) The Mental Hygiene Law requires the certification of any residential facility operated by an individual, association, corporation, or public or private agency to provide examination, diagnosis, treatment, rehabilitation or training to people with subaverage intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. A number of terms are in common usage to designate such facilities, among them being residential facility for the mentally retarded, home for children, training center, and school for exceptional children. In an effort to make more comfortable their utilization by the mentally retarded, some schools for the mentally retarded have made use of less distinctive titles, some of which convey no indication of their purpose.

(1) While affectionate attention and concern are necessary to the mentally retarded for them to thrive, those settings which purposefully replicate community or family living and provide only domestic care and comfort but no specialized programs are not considered eligible for certification under this Part.

(2) While both mentally retarded and emotionally disturbed children may benefit by a number of similar methods of care and treatment, and in consideration of the significant degree of specificity which is equally important, the department intends this Part to apply to facilities which provide services specifically for the mentally retarded. Any exceptions will be clearly specified upon the operating certificate, based upon appropriate modifications in the program acceptable to the department.

(c) This Part prescribes standards for certification. Certification of itself does not confer eligibility to receive financial support from any governmental source.

(d) It is the intent of this Part to foster increased responsibility of schools for the mentally retarded to evaluate and review their own services. This Part does not stipulate any specific modalities of care, staff training and experience or numbers, or admission criteria. They require, however, that the school prepare an adequate plan for services which addresses these issues and establishes organization policies and procedures which will facilitate implementation of the plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.2 Legal base

(a) The Mental Hygiene Law, section 13.01, prohibits any individual, association, corporation or public or private agency from operating a residential facility, school or institution for the examination, diagnosis, care, treatment, rehabilitation or training of persons with mental disabilities including mental retardation unless an operating certificate has been obtained from the Commissioner of Mental Hygiene. Sections 13.07, 13.09, 13.13 and 13.19 further authorize the commissioner or his representatives to examine and inspect such facilities to determine their suitability and proper operation. Sections 13.15 and 13.17 authorize the commissioner to suspend, revoke or limit any operating certificate.

(b) The Mental Hygiene Law, section 13.03, empowers the commissioner to adopt regulations pertaining to the regulation and quality control of services for the mentally disabled, as he may deem necessary to carry out the provisions of article 13 of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.3 Definitions pertaining to this part

A school shall mean any residential facility or institution providing a program of 24-hour professional care and treatment of mentally retarded persons.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.4 Certification

(a) No school for the mentally retarded may be operated without a valid operating certificate issued by the New York State Department of Mental Hygiene.

(b) Application for new and renewal certificates shall be submitted as directed by the department.

(c) A certificate valid for a period not to exceed two years shall be issued to schools which satisfactorily meet the conditions stated in this Part.

(d) The current certificate shall be framed and displayed in a conspicuous place which is readily accessible to the public.

(e) Certificates shall remain the property of the department and expired, invalidated, revoked or terminated certificates shall be returned to the department.

(f) The certificate holder shall obtain prior approval by the department to:

(1) Change the physical location of the school or utilize additional physical locations or premises.

(2) Change the duties or qualifications of the position of director or responsible physician.

(3) Initiate major changes in the program of the school.

(4) Change the powers or purposes set forth in any certificate of incorporation or partnership agreement.

(5) Change the maximum certified resident capacity of the school.

(g) The certificate holder shall notify the department of any intention to terminate voluntarily its services to the mentally retarded. This notice of intention to terminate voluntarily shall include a statement of the actions which will be taken to assure appropriate referral of persons receiving care or treatment, preserve the confidentiality of records, and to settle financial accounts according to pre-existing individual agreements.

(h) The certificate holder shall promptly notify the department of the name and qualifications of any newly-appointed director or responsible physician.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.5 Organization and administration

(a) Organization.

(1) The governing body shall be responsible for the overall operation and management of the school.

(2) The governing body shall establish and maintain current a plan of organization for the school which clearly indicates lines of accountability, the nature of professional responsibility to be exercised according thereto, and the professional qualifications required.

(3) The governing body shall develop and revise as necessary written policies for the quantity, quality, scope, goals, objectives, and evaluation of all programs, policies for the accomplishment of stated purposes, and personnel policies. Personnel policies shall prohibit discrimination on the basis of race, creed, sex, age or national origin.

(4) Minutes of all official meetings of the governing body shall be maintained as permanent record of the decisions made in relation to the operation of the school.

(5) Ongoing direction and control of the facility's program shall be delegated by the governing body to an appropriately-qualified professional. For the purposes of this Part this person shall be known as the director.

(6) Administrative management of the facility may be delegated by the governing body to an appropriately-qualified administrator.

(b) Administration.

(1) The governing body shall cause to be made an annual written evaluation of the total program to assess effectiveness and efficiency and to indicate any required changes in policies or service of the facility.

(2) The governing body shall cause to be made an annual audit of the financial condition and accounts of the facility by a certified public accountant who is not a member of the governing body or an employee of the facility.

(3) The governing body shall establish admission policies, including those pertaining to eligibility for service, and a description of available services which shall be written and made available to staff members, persons served and their families, cooperating agencies and the general public. All admission policies shall prohibit discrimination on the basis of race, creed, sex, age, or national origin.

(4) The governing body shall cause to be procured and maintained for reference by the governing body and staff members an up-to-date copy of these regulations and copies of any guideline instruction or information manuals or other communications as may be prescribed by the department.

(5) The governing body shall cause to be written, made known to all employees and maintained current a plan for safeguarding all residents in the event of a major disaster or civil disturbance.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.6 Program

(a) General.

(1) The governing body shall develop program policies which indicate the diagnostic and functional group or groups to be served, upper and lower age limits, any limitations on the length of residence, the provision of medical and nursing care, the administration of discipline, the assurance of proper hygiene and clothing, sources of referral, admission and discharge criteria and procedures, criteria for functional groupings and other aspects that help to define the operation of the school.

(2) Direct services to residents shall be provided in accordance with an individual written plan of care, treatment and training specifying the nature of the conditions and the disabilities found to be present and those which are to be affected, relating these to the methods of care, treatment and training to be provided, identifying the intended benefits of care and treatment and providing for appropriate review and revision. Integrated residential communities, as defined in section 27.2(g) of this Title, shall be exempt from the requirements of this section and shall instead comply with section 27.3(f) of this Title.

(3) The program shall be sufficiently comprehensive to provide residents with opportunities to engage in social and recreational activities both at the school and in the community to the extent of their capability.

(4) The school shall maintain a congenial group living spirit and shall encourage those activities which contribute to personal development and satisfaction and are common in normal homes.

(5) There shall be supervisory personnel on duty at the school at all times.

(6) A single case record, which contains current information regarding diagnosis, treatment and training, and evaluation of results of care, treatment and training for each person served, shall be available to all professional staff involved in the care or treatment of that person. In the circumstance of an integrated residential community, as defined in section 27.2(g) of this Title, paragraph (7) of this subdivision shall be controlling.

(7) Appropriate access to the case records of an integrated residential community which contain current information regarding diagnosis, treatment, training, and assessment of the results of care for each person served, shall be guaranteed by the provider agency. Information will be made available to staff interacting with the client, consulting professionals, parents and OMRDD staff in accordance with the facility's policies, subject to the review and approval of OMRDD.

(b) Admissions.

(1) All admissions shall be in accordance with the provisions of article 33 of the Mental Hygiene Law, and on the forms prescribed therefor.

(2) The certified bed capacity of the school shall not be exceeded at any time.

(1) Schools serving children of legal school age shall make available an education program which meets standards established by the New York State Education Department. Any exceptions to the foregoing shall be on an individual basis and the reasons therefor shall be documented, retained in the case record and reviewed at least twice annually.

(2) There shall be a written teaching plan for each class with modifications where necessary to meet specific needs of residents.

(3) Work-study or vocational training programs shall be available for all residents older than legal school age.

(d) Medical and health services.

(1) Medical care shall be provided as needed for each resident, and all such care shall be coordinated and approved by a single, named physician for all residents.

(i) There shall be periodic medical, dental, eye and hearing examinations, for preventive and remedial purposes, at least twice annually for residents up to age 18 and once annually thereafter.

(ii) There shall be a written communicable disease control plan, including provisions to assure new admissions being free of communicable disease, to provide regularly scheduled immunization and to control the spread of communicable diseases.

(iii) There shall be a written plan for obtaining medical care in an emergency.

(2) Psychiatric consultation shall be utilized in the preparation of the treatment plan for each resident who is mentally ill or emotionally disturbed in addition to being mentally retarded.

(3) Therapies such as physical therapy, occupational therapy, indoor and outdoor recreational and social therapy, speech and hearing therapy, and others shall be provided at the school or by arrangement with outside resources as needed for individual residents.

(4)

(i) The school shall provide full-time nursing services under the direction of a currently registered professional nurse experienced in the care of the mentally retarded if any of the following are served on a regular basis: the severely or profoundly retarded, the mildly or moderately retarded who are also physically handicapped, or the mentally retarded under five years of age.

(ii) If the facility is not required to provide full-time nursing services, all usual and necessary activities and procedures for the maintenance of physical well-being of the residents shall be provided under the supervision of a regularly scheduled part-time currently registered professional nurse.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.7 Staffing

(a) The school shall continuously employ an adequate number of appropriately qualified staff to carry out the program of examination, diagnosis, care, treatment and training effectively. A written rationale for the staffing pattern utilized shall be provided to the department.

(b) The responsible physician and all staff or consulting physicians shall be currently registered and licensed to practice medicine in the State of New York; their qualifications shall be reported to the department at the time of their employment.

(c)

(1) All staff members providing services as members of professions, the practice of which is by law required to be licensed, certified or registered, shall file documentation of compliance with the governing body; this documentation shall be retained on file and made available to the department upon request.

(2) If education is provided on the premises, the educational program shall be under the direction of a teacher certified in special education by the New York State Education Department.

(d) All staff members providing services as members of professions, the practice of which does not require licensure, certification or registration, shall file documentation of their training and experience with the governing body.

(e) All other program staff shall have qualifications appropriate to their assigned responsibilities as set forth in written policies of the governing body and shall be subject to appropriate professional staff supervision.

(f) There shall be properly trained personnel adequate for continuous maintenance and housekeeping of buildings, grounds, equipment, and for all other duties necessary for the administration of the facility.

(g) The certificate holder shall submit reports to the department, as required, of the staff employed and available in the school.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.8 Records and statistics

(a) Case records.

(1) There shall be an individual record for each person admitted to the school.

(2) Each case record shall include:

(i) legal admission documents;

(ii) identifying information on the individual and his family;

(iii) source of referral, date of commencing service and name of staff member carrying overall responsibility for treatment and care;

(iv) initial, intercurrent and final diagnoses, including psychiatric or mental retardation diagnoses in official terminology;

(v) reports of all diagnostic examinations and evaluations, including findings and conclusions;

(vi) reports of all periodic medical, dental, eye and hearing examinations;

(vii) reports of all special studies performed, including X-rays, clinical laboratory tests, clinical psychological testing, electro-encephalograms, psychometric tests;

(viii) the individual written plan of care, treatment and training (section 81.6[a][2] of this Part) or the program narrative as discussed in section 27.3(f) of this Title for integrated residential communities as defined in section 27.2(g). Integrated residential communities pursuant to section 27.2(g) shall comply with section 27.3(f) and are exempt from the requirements of subparagraphs (a)(2)(ix), (x) and (xii) of this section;

(ix) progress notes written and signed by all staff members having significant participation in the program of treatment and care;

(x) summaries of case conferences and special consultations;

(xi) dated and signed prescriptions or orders for all medications with notation of termination dates;

(xii) a closing summary of the course of treatment and care; and

(xiii) documentation of any referrals to another agency.

(3) Patient records shall be safeguarded for confidentiality and be made accessible only to authorized persons.

(b) Statistical records and reports.

(1) Such statistical information shall be prepared and maintained as may be necessary for optimally effective operation of the school and as may be required by the department.

(2)

(i) Admissions, discharges and other statistical information shall be reported to the department as required and on the forms prescribed therefor.

(ii) Statistical reporting shall be the responsibility of an appropriately qualified employee whose name and title shall be made known to the department.

(3) Summaries of statistical information shall be reviewed at least annually by the governing body.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.9 Community relations

(a) The facility shall participate appropriately in local, institutional and regional planning related to programs for the mentally retarded.

(b) Significant changes in the program of the facility shall take into account studies of needs and resources in the geographic area served by the facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 81.10 Fees and reimbursement fees

(a) Fees in schools and integrated residential communities.

(1) Fees shall be subject to the approval of the commissioner, who shall act with the concurrence of the Director of the Budget.

(2) Fees shall be adjusted to reflect each client's ability to pay. Fees charged recipients of public assistance or Supplemental Security Income benefits shall not exceed amounts available to such persons under law less the personal allowance required to be reserved for the use of the recipient pursuant to State law and regulations.

(3) Subject to the availability of resources to clients, the commissioner, with the concurrence of the Director of the Budget, may approve temporary increases in fees to meet extraordinary expenses generally incurred by providers. Such increases in fees may be individually calculated to reflect extraordinary expenses actually incurred by each provider.

(4) Requests for approval of fees or temporary increases in fees shall be made in accordance with procedures prescribed by the Commissioner of Mental Retardation and Developmental Disabilities.

(5) Upon approval of a fee or a temporary increase in fees, the provider shall give the client 30 days' written notice of the implementation of the adjusted fee.

(b) Reimbursement fees for integrated residential communities, as described in section 27.2(g) of this Title, shall be subject to the approval of the commissioner, who shall act with concurrence of the Director of the Budget.

(1) Effective June 1, 2000, such reimbursement shall be based upon the average of the nonpersonal service percentage component for fee setting regions I, II, and III of the 1998 supervised community residence fees, as developed and calculated pursuant to sections 671.7 and 686.13 of this Title.

(2) An integrated residential community (IRC) may be eligible for a salary enhancement add-on to be included in the fee established by paragraph (1) of this subdivision. This add-on will be an increase to the fee to recognize the costs of a $750 annual salary increase per full time equivalent, plus salary related fringe benefits, for those direct care and support workers of the IRC who are salaried employees. Inclusion of the add-on is subject to IRC submitting a resolution of its governing body that the additional funding received will be used to effect this salary increase. To receive the add-on the IRC must submit this resolution and an implementation plan to OMRDD and the commissioner must approve them.

(3) This fee shall be claimed as follows:

(i) The full monthly fee shall be claimed for services to an individual admitted and in residence for at least 21 days of a calendar month.

(ii) One-half of the monthly fee shall be claimed for services to an individual admitted and in residence for at least 11 days of a calendar month.

(iii) No reimbursement fee may be claimed for services to an individual if the integrated residential community charges fees other than an individual's Supplemental Security Income benefits as provided for in paragraph (a)(2) of this section.

(4) Trend factors applicable to reimbursement fees for integrated residential communities. The following trend factors shall be applied to the IRC fee established pursuant to paragraphs (1)-(2) of this subdivision and approved by the commissioner acting with the concurrence of the Director of the Budget.

(i) Effective February 1, 2007, integrated residential communities shall receive an amount they would have received if there had been a trend factor of 5.33 percent applied to the fee in effect for calendar year 2005. The fee in effect for the fee period ending December 31, 2004 shall be deemed to be increased in the amount of 5.33 percent.

(ii) Effective February 1, 2007, integrated residential communities shall receive an amount they would have received if there had been a trend factor of 3.03 percent applied to the fee in effect for calendar year 2006. The fee in effect for the fee period ending December 31, 2005 shall be deemed to be increased in the amount of 3.03 percent.

(iii) From February 1, 2007 to December 31, 2007, integrated residential communities shall be reimbursed operating costs that result in a full annual trend factor of 2.97 percent for the fee period. On January 1, 2008, the trend factor for the previous fee period shall be deemed to be the 2.97 percent full annual trend.

(iv) Effective February 1, 2008, integrated residential communities shall be reimbursed operating costs that result in a full annual trend factor of 3.52 percent for the 2008 fee period. On January 1, 2009, the trend factor for the previous fee period shall be deemed to be the 3.52 percent full annual trend.

(v) 0.00 percent for the 2009 fee period.

(vi) Effective February 1, 2010, integrated residential communities shall receive an amount that they would have received if the trend factor in subparagraph (v) of this paragraph had been 3.06 percent. On January 1, 2010, the trend factor for the previous fee period shall be deemed to be the 3.06 percent full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner.

(vii) From February 1, 2010 to December 31, 2010, integrated residential communities shall be reimbursed operating costs that result in a full annual trend factor of 2.08 percent for the annual fee period. On January 1, 2011, the trend factor for the previous fee period shall be deemed to be the 2.08 percent full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner.

Part 85 Operation Of Outpatient Facilities For The Mentally Disabled

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.1 Background and intent

(a) This Part is intended to promote the application of the most effective methods by which the mentally ill, mentally retarded and alcoholics may be helped to achieve maximum self-sufficiency while providing for their safety and general well-being to the extent that it does not prevent them from the practice of social skills in the natural round of life.

(b) The purpose of therapeutic programs for the mentally ill or the mentally retarded is to improve the social competence of those they serve. Outpatient or ambulatory programs contribute to the accomplishment of this purpose by fostering the practice of social skills in the natural round of life. There are, however, differences between mental illness and mental retardation which require varying emphases in programs. An essential program component for the mentally ill is psychiatric treatment; for the mentally retarded primary modalities are therapeutic education and training. It is, however, a common purpose addressed to social competence which has led to most development of short-term problem-oriented treatment approaches, group methods, and services to family members together, regardless of the mental condition.

(c) The Mental Hygiene Law requires the certification of any nonresidential or outpatient facility operated by a corporation or a public agency to provide examination, diagnosis, care, treatment, rehabilitation or training to people with a disturbance in behavior, feeling, thinking or judgment so severe as to require care and treatment to people with subaverage intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior, or to people who habitually use alcoholic beverages to the extent that this is beyond their control or endangers health, safety or welfare. A number of terms are in common usage to refer to such facilities, among them being psychiatric clinic, mental health clinic, child guidance clinic, day hospital, day training center and alcoholism clinic. In an effort to make more comfortable their utilization by the mentally handicapped, some outpatient facilities have made use of less distinctive titles.

(1) While many forms of organized community supportive services available to the general public are of great value to those with mental handicaps as well, and are made available to them as needful members of the general public, this Part is not intended to apply to such services in the absence of a primary purpose to provide services to the mentally disabled as defined in the Mental Hygiene Law.

(2) Specialized methods of training the mentally ill and mentally retarded in life skills on an outpatient basis having become an established service for the mentally disabled, this Part is intended to apply to nonresidential facilities which provide day training programs or day treatment programs for the mentally disabled.

(d) This Part prescribes standards for certification. Certification of itself does not confer eligibility to receive financial support from any governmental source.

(e) It is the intent of this Part to foster increased responsibility of outpatient facilities for the mentally disabled to evaluate and review their own services. The number and type of services may vary among different outpatient facilities depending upon local needs, the age groups and diagnostic groups served, the services provided by others in the same geographic area, the availability of staff, and the service capacity of the outpatient facility. This Part does not stipulate any specific modalities of care, staff training and experience or numbers, or admission criteria. They require, however, that the facility prepare an adequate plan for services which addresses these issues and establishes organization policies and procedures which will facilitate implementation of the plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.2 Legal base

(a) The Mental Hygiene Law, section 13.01, prohibits any public agency, board or commission or any corporation from operating a facility established or maintained to provide nonresidential or outpatient examination, diagnosis, care, treatment, rehabilitation or training of persons with mental disabilities, including mental illness, mental retardation or alcoholism, unless an operating certificate has been obtained from the Commissioner of Mental Hygiene.

(1) Certain exemptions to the basic scope of application noted above are provided for in section 13.01 of the Mental Hygiene Law, including the following:

(i) professional practice, on an individual or partnership basis, authorized by professional licensure or professional certification such as that granted by the Boards of Examiners of the State Education Department;

(ii) professional practice for profit by a professional service corporation duly incorporated pursuant to article 15 of the Business Corporation Law;

(iii) nonresidential services for the mentally disabled which are provided in accordance with licensure or other supervision by a State agency other than the Department of Mental Hygiene;

(iv) nonresidential services for the mentally disabled which are provided directly by any agency or department of the State;

(v) nonresidential services for the mentally disabled which are provided in accordance with purposes authorized in a charter or certificate of incorporation issued pursuant to the Education Law; and

(vi) pastoral counseling by a clergyman or minister, as such a title is defined in section 2 of the Religious Corporations Law.

(2) Certain inclusions within the basic scope of application noted above are specified in section 13.01 of the Mental Hygiene Law, including nonresidential services for the mentally disabled provided by any part, operated specifically for that purpose, of a general hospital as defined in article 28 of the Public Health Law.

(b) The Mental Hygiene Law, sections 13.07, 13.09, 13.13 and 13.19, further authorizes the commissioner or his representatives to examine and inspect such facilities to determine their suitability and proper operation. Sections 13.15 and 13.17 authorize the commissioner to suspend, revoke or limit any operating certificate.

(c) The Mental Hygiene Law, section 13.03, empowers the commissioner to adopt regulations pertaining to the regulation and quality control of services to the mentally disabled, as he may deem necessary to carry out the provisions of article 13 of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.3 Definitions pertaining to this part

Outpatient facility or nonresidential facility shall mean any clinic, center, institute, hospital, school, institution or other place providing a program of services for the mentally disabled on other than a 24-hour basis and not including overnight stay by those served.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.4 Certification

(a) No outpatient facility may be operated without a valid operating certificate issued by the New York State Department of Mental Hygiene.

(b) Application for new and renewal certificates shall be submitted as directed by the department.

(c) A certificate valid for a period not to exceed two years shall be issued to outpatient facilities which satisfactorily meet the conditions stated in this Part.

(d) The current certificate shall be framed and displayed in a conspicuous place which is readily accessible to the public.

(e) Certificates shall remain the property of the department, and expired, invalidated, revoked or terminated certificates shall be returned to the department.

(f) The certificate holder shall obtain prior approval by the department to:

(1) change the physical location of the outpatient facility, utilize additional physical locations or operate mobile programs;

(2) change the duties or qualifications of the position of director of the outpatient facility;

(3) initiate major changes in the program of the outpatient facility; or

(4) change the powers or purposes set forth in any certificate of incorporation.

(g) The certificate holder shall notify the department of any intention to terminate voluntarily its services to the mentally ill, mentally retarded, or alcoholics. This notice of intention to terminate voluntarily shall include a statement of the actions which will be taken to assure appropriate referral of persons receiving care of treatment, to preserve the confidentiality of records, and to settle financial accounts according to pre-existing individual arrangements.

(h) The certificate holder shall promptly notify the department of the name and qualifications of any newly-appointed director or responsible physician.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.5 Organization and administration

(a) Organization.

(1) The certificate holder shall identify individually by name a group of persons responsible for the overall operation and management of the outpatient service. For purposes of this Part, this group shall be known as the governing body.

(2) The governing body shall establish and maintain current a plan of organization for the outpatient facility which clearly indicates lines of accountability, the nature of professional responsibility to be exercised according thereto, and the professional qualifications required.

(3) The governing body shall develop and revise as necessary written policies for the quantity, quality, and scope, goals, objectives, and evaluation of all programs, policies for the accomplishment of stated purposes, and personnel policies. Personnel policies shall prohibit discrimination on the basis of race, creed, sex, age or national origin.

(4) Minutes of all official meetings of the governing body shall be maintained as permanent record of the decisions made in relation to the operation of the outpatient facility.

(5) Ongoing direction and control of the program of the facility shall be delegated by the governing body to an appropriately qualified professional. For the purposes of this Part this person shall be known as the director.

(6) Administrative management of the facility may be delegated by the governing body to an appropriately qualified administrator.

(7) No person shall serve as both a member of the governing body and of the paid staff of the facility without the prior approval of the commissioner.

(b) Administration.

(3) Admission policies, including those pertaining to eligibility for service, and a description of available services which shall be written and made available to staff members, persons served and their families, cooperating agencies and the general public. All admission policies shall prohibit discrimination on the basis of race, creed, sex, age, or national origin.

(i) Criteria of suitability for admission to any program shall be based upon clearly defined factors appropriate to the purposes of the program.

(ii) Admission policies shall provide for appropriate referral of those persons applying for admission who do not meet the pre-established criteria for admission to any program.

(4) The governing body shall cause to be procured and maintained for reference by the governing body and staff members an up-to-date copy of this Part and copies of any guideline instruction or information manuals or other communications as may be prescribed by the department.

(5) The governing body shall appoint a special review committee, including members of the professional clinical staff which shall:

(i) Develop a written special review plan subject to approval by the governing body and the department. This plan shall provide for review of all untoward incidents which may occur and extra risk procedures administered. (Untoward incidents may include, but not be limited to, serious drug reactions, suicides and sudden deaths, assaults, accidents, and terminations of service against professional advice. Extra risk procedures may include, but not be limited to, behavior modification, somatic therapies, and experimental treatment modalities),

(ii) Review and evaluate untoward incidents and extra risk procedures in accordance with the plan,

(iii) Determine the facts in any incident reviewed, review ongoing practices and procedures in relation to such incidents and extra risk procedures and recommend changes in policies, practices or procedures which may be indicated.

(iv) Include either on a regular membership basis or by special arrangement as indicated the participation of appropriately qualified and experienced physicians, and

(v) Meet as often as necessary to properly execute its functions and in no event less often than quarterly, keeping written minutes of its deliberations and submitting reports to the governing body as necessary.

(6)

(i) The governing body of a facility providing services to the mentally ill pursuant to an operating certificate issued by the Office of Mental Health shall require staff of the facility to participate with the local governmental unit in local planning processes as required by sections 41.05 (e) and 41.16 of the Mental Hygiene Law. Such participation must be documented in the approved local services or unified services plan of each local governmental unit served by the facility. At a minimum, facility participation shall include:

(a) provision of budgeting and planning data as requested by the local governmental unit;

(b) identification of the population being served by the facility;

(d) description of the facility's relationship to other providers of services who serve the same geographic area, including, but not limited to, written agreements to ensure expeditious access to programs by persons who need them. At a minimum, these agreements shall provide a process for prompt referral, evaluation, and, as necessary, admission to cooperating programs; specify mechanisms for coordinated development of service plans for patients being served by more than one program; and provide a mechanism for sharing information about patients being served; and

(e) attendance at planning meetings as may reasonably be required by local governmental unit.

(ii) For facilities issued operating certificates by the Office of Mental Health, the Regional Director shall determine, after hearing if necessary, whether the facility has participated in the planning process in good faith and reasonable conformity with the goals and objectives of the statewide comprehensive plan for services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.6 Program

(a) All direct services shall be provided in accordance with principles of continuity of care, whereby a single member of the professional staff shall exercise primary responsibility for each person served at all times, and as assured by written agreements with other facilities for the provision of specialized services not directly provided by the certificate holder.

(b) All direct services shall be provided in accordance with an individual written plan of care, treatment, and rehabilitation or training specifying the nature of the conditions and the disabilities found to be present and those which are to be affected, relating these to the methods of care, treatment and rehabilitation or training to be provided, identifying the intended benefits of care and treament and providing for appropriate review and revision.

(d) A single case record which contains current information regarding diagnosis, treatment and evaluation of results of care or treatment for each person served shall be available to all professional staff involved in the care or treatment of that person.

(e) The facility shall maintain continuously in force a written policy on prescription and dispensing of medications including appropriate time limits for prescriptions or drug orders and requirements for review by the physician responsible.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.7 Staffing

(a) The facility shall continuously employ an adequate number of appropriately qualified staff to carry out the program of examination, diagnosis, care, treatment, and rehabilitation or training effectively. A written rationale for the staffing pattern utilized shall be provided to the department.

(b) All staff physicians shall be currently registered and licensed to practice medicine in the State of New York; their qualifications shall be reported to the department at the time of their employment.

(1) The facility shall not permit physicians in training to perform a service for which a license is required by the State of New York except as a part of an approved training program and unless authorized by a temporary certificate to practice medicine at the facility and they are at the time under the direct control and supervision of a currently registered and licensed physician.

(i) A training program to be approved must be accredited by the Council on Medical Education of the American Medical Association, the appropriate specialty boards or any other recognized approval body based on standards acceptable to the department.

(ii) With respect to the care of recipients of health insurance and medical assistance only, training programs must comply with the requirements of applicable rules and regulations of the Secretary of Health, Education and Welfare pertaining to resident, intern and medical student training programs enacted pursuant to the Health Insurance for the Aged Act.

(2) All direct service, other than in an emergency, provided by interns, house officers, residents or physicians with equivalent titles shall be provided as specified in paragraph (1) of this subdivision unless provided by a physician currently registered and licensed to practice in New York State.

(c) All staff members providing services as members of professions the practice of which is by law required to be licensed, certified or registered shall file documentation of compliance with the governing body; this documentation shall be retained on file and made available to the department upon request.

(d) All staff members providing services as members of professions the practice of which does not by law require licensure, certification or registration shall file documentation of their training and experience with the governing body.

(f) The certificate holder shall submit reports to the department, as required, of the staff employed by and available in the facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.8 Premises

(a) The certificate holder shall maintain premises appropriate and adequate for the safe and effective examination, diagnosis, care, treatment, and rehabilitation or training of all persons served.

(b) The space provided shall be both adequate and appropriate for:

(1) The maintenance of privacy for interviews between staff members and the persons served,

(2) The comfort and convenience of those waiting for services,

(3) Accommodation of activities and equipment necessary to special activities such as group discussions, play therapy, medical examinations, occupational therapy, speech and hearing therapies, or others which are regularly provided, and

(4) Controlled access to and maintenance of case records.

(c) If medications are stored or dispensed on the premises of the facility, the certificate holder shall provide for controlled access and maintenance of supplies in accordance with all applicable Federal, State, and local laws and regulations.

(d) The premises, whether stationary or portable, shall comply with all local zoning and building laws, regulations and ordinances.

(1) Heating, lighting and ventilation shall be adequate for the comfort and well-being of the persons served and the employees.

(2) A written certificate of occupancy by the local building inspection authority shall be retained in the records of the facility.

(e) The premises shall comply with all local fire safety, sanitation and health laws, regulations and ordinances. Written certification of approval by all authorized local authorities shall be retained in the records of the facility.

(f) Mobile premises and their use shall comply with all applicable laws, regulations and ordinances.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.9 Records and statistics

(a) Case records.

(1) There shall be an individual record for each person admitted to the facility.

(2) Each case record shall include:

(i) Identifying information about the person served and his family,

(ii) Source of referral, date of commencing service and name of staff member carrying overall responsibility for treatment and care,

(iii) Initial, intercurrent and final diagnoses including psychiatric, mental retardation or medical diagnoses in official terminology,

(iv) Reports of all diagnostic examinations and evaluations including findings and conclusions,

(v) Reports of all special studies performed including X-rays, clinical laboratory tests, clinical psychological testing, electro-encephalograms or psychometric tests,

(vi) The individual written plan of care, treatment, and rehabilitation (85.6 [b] above),

(vii) Progress notes written and signed by all staff members having significant participation in the program of treatment and care.

(viii) Summaries of case conferences and special consultations,

(ix) Dated and signed prescriptions or orders for all medications with notation of termination dates,

(x) A closing summary of the course of treatment and care, and

(xi) Documentation of any referrals to another agency.

(3) The certificate holder shall develop policies and procedures for recording information about persons not admitted for service such as persons on waiting lists, family members of persons served and persons whose applications for service are rejected by the facility.

(4) Patient records shall be safeguarded for confidentiality and be accessible only to authorized persons.

(b) Statistical records and reports.

(1) Such statistical information shall be prepared and maintained as may be necessary for optimally effective operation of the facility and as may be required by the department.

(2)

(i) Admissions and discharges, and other statistical information, shall be reported to the department as required and on the forms prescribed therefor.

(ii) Statistical reporting shall be the responsibility of an appropriately qualified employee whose name and title shall be made known to the department.

(3) Summaries of statistical information shall be reviewed at least annually by the governing body.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 85.10 Community relations

(a) The facility shall integrate its services to other relevant community services in order to provide comprehensive care.

(b) The facility shall assure through agreements with other community resources the availability of necessary services not provided at the facility. In determining necessity, the facility shall take account of clinical laboratory services, special medical diagnostic or treatment services, respite services, and foster homes or community residences.

(c) The facility shall participate appropriately in local, areawide, regional and State planning related to programs for the mentally disabled.

(d) Significant changes in the facility program shall take into account studies of needs and resources in the geographic area served by the facility.

Chapter VI Community Mental Health Services

Part 100 State Aid For Operating Costs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.1 Applications

(a) Applications from counties, part-counties and cities for State aid for operating costs must be received in quadruplicate in the appropriate regional office of the State Department of Mental Hygiene no later than the day prior to the first day for which State aid will be claimed under the provisions of article 11 of the Mental Hygiene Law.

(b) The application must be accompanied by:

(1) A budget summary which identifies each service and facility and shows the total sum budgeted for each.

(2) Detailed budgets of proposed expenditures as adopted for the local governmental unit.

(3) Copies of contracts for the rendition of services or the operation of facilities by private and/or voluntary agencies.

(4) Copies of agreements or resolutions of the governing body for the rendition of services or operation of facilities by agencies of the city or county other than the local governmental unit.

(5) Copies of the certificates of appointment and the names, terms of office and identification by position or occupation of the members of the community mental health, retardation, and alcoholism services boards.

(c) The budget of the local governmental unit, as submitted, must give a detailed financial statement of each subdivision. This must include titles, annual salary rates or amounts for each position, amounts budgeted for traveling expenses, purchase of equipment, purchase of automobiles or other motor vehicles, rental of space, amounts for other expenses and the expected income from all sources. Such budgets shall be on forms provided by the State Department of Mental Hygiene.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.2 Conditions and extent of reimbursement

(a) Establishment of a community mental health, retardation, and alcoholism services board and appointment of its members must precede any application for State aid. Section 11.11 of article 11 of the Mental Hygiene Law describes the composition of the board and its methods of appointment and terms of office of its members.

(b) No provider of services shall be eligible for reimbursement of operating costs unless it is in possession of a current valid operating certificate authorizing the operation of the programs, the costs of which are to be reimbursed.

(1) salaries and expenses of qualified and necessary personnel, including the director of community mental health services and other staff of the local governmental unit;

(2) approved facilities and services provided through contract or other arrangement;

(3) operation, maintenance, and service costs;

(4) actual and necessary expenses of members of the board incurred in the performance of official duties;

(5) such other expenditures as may be approved by the Commissioner of Mental Hygiene pursuant to the provisions of article 11.

(d) Claims for State reimbursement shall be made quarterly on forms which shall be provided by the Commissioner of Mental Hygiene. When certified by the Commissioner of Mental Hygiene, State reimbursement shall be paid quarterly from the State treasury upon the audit and warrant of the Comptroller out of funds made available therefor.

(e) For purposes of State aid, revenue of the local government shall be deducted from operating costs to form net operating costs in accordance with the following schedule:

(1) revenues for operating costs received from other State agencies or another local government pursuant to an agreement to purchase community services;

(2) other income realized in the operation of specific program;

(3) federal aid received for operating costs;

(4) fees received from patients or on their behalf from private and public health insurance and medical aid programs.

(f) Where reimbursement is sought for services rendered or facilities operated (with the approval of the governing body or, in the case of the City of New York, of the board of estimate) by agencies of the city or county other than the local governmental unit, the budgets of proposed expenditures for such services or facilities must be part of the budget of the local governmental unit and the services or facilities must be under the general supervision of the said unit.

(g) Contributions and gifts from private sources to the political subdivision which are disbursed or expended by the appropriate local fiscal officer on the direction of the local governmental unit shall be considered to be the same as tax funds in computing State aid.

(h) Mental health clinics or other services made available to or provided for children attending public schools for which State aid is sought shall be made available to or provided for children who attend schools other than public, upon request by the authorities of such schools.

(i) Fees shall be charged for direct patient services for which reimbursement is sought, provided that services shall not be refused to any person because of his inability to pay therefor.

(j) Fee schedules and rules for determining ability to pay may be established by the local governmental unit or the unit may approve schedules and rules established by the clinical services or facilities. In either case, these may be approved by the Commissioner of Mental Hygiene.

(k) Fees for services in outpatient psychiatric clinics shall be all-inclusive. Fee charges for inpatient psychiatric services in general hospitals and in nonprofit licensed private institutions shall be consistent with prevailing hospital practice, including a per diem rate which, preferably, should be all-inclusive.

(l) Services for which reimbursement is sought must not be refused to any person because of his race, color, creed, or country of origin and the said services must comply with the New York State laws and policies against discrimination in employment.

(m) Fees for visits to psychiatric clinics shall be fixed in accordance with the following pattern:

(1) For a visit to a psychiatric clinic operated by a general hospital, the fee shall be fixed as determined by the New York State Department of Health for the particular clinic.

(2) For the following defined services rendered in psychiatric clinics which are not operated by a general hospital, the fees indicated shall apply

| Service provided | Fee per unit of service | | | --- | --- | --- | | (i) | Intake session -a clinical interview, under supervision of a psychiatrist, between one or more personnel and a patient, the primary purpose of which is the determination of the most appropriate mode of treatment for the patient's condition. The interview may include counseling of the patient incidental to placement. | $28.00 | | (ii) | Clinic visit -a period of direct, individual patient treatment or counselling or planned social, recreational, occupational or vocational activity by personnel under supervision of a psychiatrist and for a period not exceeding three hours. | 28.00 | | (ii) | Clinic visit with psychiatrist -a clinic visit as defined in (ii) above, conducted by a psychiatrist | 28.00 | | (iv) | Group therapy session -a period of treatment of more than one patient and/or collateral with one or more staff members at one time not exceeding three hours, under the supervision of a psychiatrist. | 9.00 | | (v) | Day care -a program offering treatment including a planned program of recreational, social and vocational activities in a therapeutic environment. Treatment services may be provided by a staff which may include psychiatrists, psychologists, social workers, nurses, educators, occupational and recreational therapists, psychiatric aides and volunteers. Treatment may include individual or group therapy, patient-staff meetings, drug therapy, occupational therapy, recreational therapy and other activity. A unit of day care regardless of its components must be at least five hours in duration for an individual patient | 28.00 | | (vi) | Half-day of care -a period of care more than three but less than five hours in a day care program, as described above. | 14.00 | | (vii) | Evening care -a program of care in the evening hours similar to day care, described above. | 28.00 | | (viii) | Night care -a program of care in the evening hours similar to day care, described above, and would also include a bed at the facility during the night | 28.00 | | (ix) | Medication -the dispensing to the patient of a prescribed dosage of drugs. | None | | (x) | Clinical home visit -visits to patients in their homes are appropriate as a component of a 24-hour emergency or follow-up service program, and as the preferred method of providing treatment services to selected patients who cannot attend clinics. The latter would include persons who have a physical handicap or concurrent physical illness, many older patients who with the support of an occasional home visit can be maintained at home, persons responsible for the care of small children in the home when there is no way to arrange for their care and patients for whom transportation is neither available nor otherwise feasibly arranged. Home visits should be a component of an individual patient's therapeutic program, planned under the supervision of a physician and subject to periodic review and evaluation. | 28.00 | | (xi) | Pre-admission clinical diagnostic evaluation -a clinical examination by a physician alone or accompanied by other members of a team of a person referred for admission to a mental hospital in order to determine the applicant's care needs. | 28.00 |

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.3 Services and facilities for which state aid will be granted

(a) Subject to the requirements set forth in article 11 of the Mental Hygiene Law and in this Part, reimbursement will be made for costs incurred for all services provided in accordance with an approved county plan.

(b) Reimbursement for inpatient care in a general hospital shall be limited to 30 days in any spell of illness. A spell of illness is a period of consecutive days that begins with the first day (not included in a previous spell of illness) on which a patient is furnished inpatient psychiatric hospital services and ends with the close of a period of 60 consecutive days during which the patient was not an inpatient in a psychiatric hospital or psychiatric unit of a general hospital. The first day of the 60 consecutive day period begins on the day of discharge. The 30 days eligible for reimbursement need not be consecutive. The hospital utilization review committee may waive this limitation on reimbursement by the State for one additional period of up to 30 days (total 60 days). An additional extension of reimbursement for a maximum period of up to 30 days may be made by the director of community mental health services, based on a recommendation of the hospital utilization review committee. (Total 90 days.) Subsequent 30-day extensions by the director of community mental health services based on utilization review committee reports may be made only with prior approval of the Commissioner of Mental Hygiene. Periods of partial hospitalization treatment, such as psychiatric day care and psychiatric night care, shall not be considered to be part of the inpatient stay.

(c) Reimbursement for inpatient care in a general hospital may include therapeutic leaves of not more than 48 hours in any week, but such leaves may not be in the nature of terminal leaves, nor may they extend into another week.

(d) Expenditures for inpatient care for persons eligible for assistance under the programs of medical assistance for the aged and old age assistance under the rules and regulations of the State Department of Social Services shall not be reimbursable under this program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.4 Exclusions from state aid

The following are excluded from State aid:

(a) Costs incurred for which State reimbursement is claimed under any other provision of law.

(b) Expenditures for capital additions or improvements.

(c) Compensation to members of a community mental health, retardation and alcoholism services board (except actual and necessary expenses incurred in the performance of official duties).

(d) Expenditures for services furnished to patients who are financially able to pay for private care.

(e) Expenditures for mental health clinics or other services operated exclusively in conjunction with schools or limited to court referrals unless such services are under the general direction and supervision of the local governmental unit and are included in the budget of the said unit.

(f) All rentals for space utilized for local governmental unit purposes, if such rentals are payable to the same city or county as operates the local governmental unit.

(g) Costs incurred by a provider of services where the provider of services does not have a required operating certificate; or costs of service incurred if the provider of services has an operating certificate but the services are not authorized to be rendered pursuant to such certificate.

(h) Depreciation on any facility, the construction of which has been wholly or partially financed through State aid for capital costs.

(i) Debt service, whether principal or interest.

(j) Rentals paid to the Health and Mental Hygiene Facilities Improvement Corporation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.5 Personnel

(a) Personnel for whom reimbursement is claimed shall be qualified for their respective positions and shall possess at the time of appointment qualifications established for the position by the State Commissioner of Mental Hygiene or acceptable to him.

(b) For the purposes of reimbursement for consultant and educational services, qualified mental health personnel shall include psychiatrists, psychiatric social workers, clinical psychologists, mental health consultants, mental health educators and psychiatric nurses.

(c) Personnel of private and/or voluntary agencies with whom contracts are made for the rendition of services or the operation of facilities must meet standards established by or acceptable to the State Commissioner of Mental Hygiene.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.6 Reports, review and evaluation of service

(a) Local governmental unit and/or directors of community mental health services shall submit such reports as may be required by the State Commissioner of Mental Hygiene.

(b) The Commissioner of Mental Hygiene or any authorized representatives of the State Department of Mental Hygiene may visit, examine, inspect and investigate any service or facility for which State aid is claimed under article 11 of the Mental Hygiene Law to determine whether the services and facilities are being conducted in compliance with the provisions of the law and regulations relating thereto.

(c) The Commissioner of Mental Hygiene or his authorized representatives shall have the right to examine the financial accounts and related records of any local governmental unit or voluntary agency under contract.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.7 Review of certain decisions of local governmental units

Mental Hygiene Law, § 11.13, subd. (e).

(a) Introduction.

Article 11 of the Mental Hygiene Law makes clear that the policy of the State is that the local governmental unit shall be the operative agency for insuring that local services for the mentally disabled are provided. The units are charged with this responsibility for planning, supervising and coordinating such local services. Local programs carried out pursuant to the law and to this Part which have been approved by the department are eligible for State aid in accordance with the formulas set forth in the law. Voluntary organizations offering community services pursuant to contract with local governmental units have been recognized as an extremely important component of the community services program. In approving the plan for each community, as submitted by its local governmental unit, the department makes every effort to see that the local plan is well balanced and makes full use of community resources, including the use of voluntary organizations which have the expertise and the resources to participate in community programs. Section 11.13, subdivision (e) of the Mental Hygiene Law provides that a non-profit agency which has been refused a contract by a local governmental unit may appeal to the commissioner. If the commissioner upholds the appeal, the department may enter into a direct contract with the agency. This Part sets forth the criteria and the procedures for appeal and decision under that section. The policy of the department remains one of encouraging local governmental units to make full use of voluntary organizations where appropriate for the development of community programs, and to resolve disagreement at the local level without the need for an appeal pursuant to this section.

(b) Right to appeal.

(1) A corporation, incorporated or existing, pursuant to the Not-for-Profit Corporation Law, which has the power to provide community mental health, mental retardation, or alcoholism services may appeal to the commissioner within 30 days from the date that such appellant has been notified of the refusal by the local governmental unit to enter into a contract with such appellant or within 30 days after the unit's failure to include such a contract in its plan or budget.

(2) An appeal may be had only where the application for a contract to the local governmental unit by the appellant does not involve the direct expenditure of local tax money.

(1) An appeal to the commissioner pursuant to this section, must be in writing with a copy to the local governmental unit and to the appropriate regional office of the department. The written appeal must set forth facts showing the following:

(i) The details of the program which the appellant has offered in its proposed contract.

(ii) The need for the program in the community.

(iii) A showing that the appellant has the capacity to furnish the services. Specific detail must be shown that the appellant would be able to provide the place, the personnel and the organizational structure to effectuate the proposed program and that it has such licenses or approvals as are needed to operate such a program. The appellant must also show that it has the financial ability to provide sufficient funds to match State aid.

(iv) The appellant must show that it has made a concrete offer in writing with specific proposals to the local government within the time possible for inclusion of the item in the local plan and budget.

(v) A copy of the decision of local government to refuse to enter into the agreement or sufficient facts to show that there has been a definite decision to that effect must be submitted.

(2) The department will notify the local governmental unit of the appeal and will give the unit 30 days to make its reply to the appeal. In its reply, the unit shall set forth facts showing whether there was a substantial basis for its decision. The unit shall serve a copy of its reply, personally or by mail, upon the appellant.

(d) Conciliation.

Every effort shall be made by the department to conciliate the appellant and the unit. Informal sessions may be arranged for a discussion of the issues and an attempt to resolve the appeal without further formal procedure.

(e) Disposition without hearing.

If the appellant has failed to set forth in its written appeal a substantial basis for consideration of the matter by the commissioner, or if, on the basis of the facts appearing on the papers presented to the commissioner, there appears no substantial basis for appeal, the commissioner shall dismiss the appeal.

(f) Hearing.

(1) If a substantial basis for appeal has been presented by the appellant, and the efforts of the department at conciliation have failed, a hearing shall be held before the commissioner or someone designated by him at a time or times fixed by the commissioner. Written notice of the hearing shall be given to the appellant, the local governmental unit and such other persons as the commissioner may deem advisable.

(2) The hearing shall not be adjudicatory in nature and the rules applying to quasi-judicial hearings shall not apply. The appellant, the representatives of the local governmental unit, appropriate staff members of the department and other interested individuals may present their views to the commissioner on the merits of the appeal.

(3) Whenever possible, the commissioner shall designate a place in the county seat of the county from which the appeal has arisen for the conduct of the hearing.

(g) Decision.

(1) Within 20 days after the date that the hearing has closed, a decision shall be made by the commissioner on whether the appeal is meritorious.

(2) The commissioner shall notify the local governmental unit and the appellant of his decision. If the decision holds that the appeal is meritorious, the notice shall require that the local governmental unit give further consideration to the appellant's request and notify the commissioner within 20 days as to whether or not the unit has reconsidered its refusal.

(3) If a local governmental unit notifies the commissioner that it is willing to grant the contract requested by the appellant, the commissioner shall close the matter.

(4) If the local governmental unit notifies the commissioner that it is not willing to reconsider its refusal or if such unit fails to reply within the time specified, the commissioner may then decide whether to grant a contract directly with the appellant. A decision to grant a contract shall be within the sole discretion of the commissioner and shall be based on his judgment on the desirability of the program and the availability of funds for this purpose. In every case where the appeal has been found meritorious, regardless of whether or not a direct contract is granted, the commissioner shall direct a review of the adequacy of the local plan for community services for the mentally disabled.

(5) Direct contracts with agencies shall only be made under the following conditions:

(i) Contracts may only be made within existing appropriations.

(ii) The department shall not pay more than the percentage of the net cost of the services that the appellant would have received if the contract had been granted by the local governmental unit.

(iii) The term of any contract shall be limited to one year.

(iv) Further contracts will only be made directly with the appellant upon a showing by the appellant that it has submitted its proposal for future fiscal years to the local governmental unit and that such unit has continued to refuse to enter into a contract.

(v) Such other conditions as the commissioner may direct to insure that the service is adequate and suitable and appropriately related to other elements of the local plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 100.8 Local comprehensive planning process

Mental Hygiene Law, § 11.05(e), § 11.13(a)(3).

(a) A county application for State aid shall be considered by Department of Mental Hygiene when:

(1) There is on file with the department a current local comprehensive five year plan for all services to mentally disabled residents of the area which has been approved by the Commissioner of Department of Mental Hygiene. Such plan must be consistent with statewide goals and objectives to the extent that such goals and objectives have been established at the time of the writing of the plan.

(2) There is on file an annual implementation plan consistent with the local comprehensive five year plan.

(3) The county plans in this subdivision have been submitted for review and comment to the appropriate health systems agency.

(b) Comprehensive five year and annual implementation plans must be the product of a continuing planning process under the direction and administration of the local government unit. This process shall include at the appropriate level the participation of public facilities in the provisions of mental hygiene services, departmental facilities, all voluntary agencies under contract with the local governmental unit, consumer groups, and other human service agencies relevant to the effective delivery of services to mentally disabled persons. Participation in the locally administered planning process shall include activities involving (1) information sharing and data collection; (2) need assessment; (3) setting of goals, objectives and priorities; (4) decisions about respective service responsibilities of local and departmental facilities.

(c) In order to carry out its responsibility for directing and administering a comprehensive local planning process, the local governmental unit shall establish a planning structure commensurate with the size and complexity of the county's service delivery system.

(1) In establishing this planning structure, adequate attention must be paid to the needs of persons suffering from mental and emotional disorders, developmental disabilities, alcoholism and substance abuse.

(2) Any local governmental unit serving more than one mental health district established pursuant to the Federal Health Revenue Sharing Act of 1975 ( P.L. 94-63) shall, as part of the planning process, identify the accessibility of existing mental health services to, and the need for new or expanded mental health services for, each of those sub-areas.

(d) The regional director shall support the local governmental unit's efforts to assure active participation in the planning process of the State facilities and other agencies in receipt of State aid or other forms of Department of Mental Hygiene funding. He shall designate a member of the regional office staff as an ex officio member of the local planning group to serve as liaison for the regional office in the planning process and to provide and coordinate needed technical assistance.

(e) The local governmental unit shall be responsible for maintaining records of all deliberations of the various planning committees and of the planning process as a whole.

(f) The approved county plans shall form the basis for (1) the allocation of State aid to localities, (2) departmental recommendations on applications for grants under various Federal and State statutes; and shall be considered in making departmental decisions regarding funding of departmental facilities.

(g) Before the plans will be approved by the Office of Mental Health, the local governmental unit must make reasonable efforts to engage in the planning process all agencies issued operating certificates by the Office of Mental Health and providing services in the area of the local governmental unit. Such efforts, which shall include participation by agencies as required by sections 82.5(b)(7), 83.5(b)(7), 85.5(b)(6) and 586.5(b)(4) of this Title, must be documented in the plans submitted by the local governmental unit.

Part 102 Directors Of Community Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.1 Background and intent

(a) This Part sets forth the minimum requirements for directors of community services in order to ensure the effective direction and administration by each local governmental unit of a local comprehensive service system.

(b) This Part establishes the educational, experiential and licensing requirements for individuals seeking to be appointed as directors of community services.

(c) This Part delineates the powers and duties of the position of director of community services and establishes the process for review of candidates by the Inter-Office Coordinating Council.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.2 Legal base

(a) Section 5.05 of the Mental Hygiene Law establishes the powers and the duties of the Inter-Office Coordinating Council of the Department of Mental Hygiene.

(b) Section 41.09 of the Mental Hygiene Law authorizes local governments to appoint and remove directors of the local governmental unit. Each director shall meet the standards set forth in this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.3 Applicability

(a) This Part applies to all local governmental units which contract for and/or provide services, licensed in accordance with the provisions of the Mental Hygiene Law, for persons diagnosed with mental illness, persons with mental retardation, persons with developmental disabilities, persons with alcoholism and persons who abuse substances.

(b) This Part applies to all persons making application for the position of director of community services.

(c) This Part applies to the Inter-Office Coordinating Council which is responsible for reviewing and ruling upon the appointment of a proposed director of community services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.4 Definitions

(a) Board means a community services board which plans for services to persons diagnosed with mental illness, persons with mental retardation, persons with developmental disabilities, persons with alcoholism and persons who abuse substances.

(b) Local governmental unit means the unit of a local government given authority by local government to contract for and/or provide local or unified mental health, mental retardation and development disabilities, alcohol abuse and substance abuse services.

(c) Director of community services means the chief executive officer of a local governmental unit, by whatever title known.

(d) Inter-Office Coordinating Council means a council constituted by the Commissioner of the Office of Mental Health, Commissioner of the Office of Mental Retardation and Developmental Disabilities, the Commissioner of the Office of Alcoholism and Substance Abuse Services which shall ensure that the State policy for the prevention, care, treatment and rehabilitation of mental illness, mental retardation and developmental disability, alcoholism and substance abuse is comprehensively planned, developed, implemented and regulated.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.5 Appointment process

(a) The local governmental unit shall appoint a director of community services utilizing the procedures set forth by the Inter-Office Coordinating Council. The Inter-Office Coordinating Council shall promptly review and rule upon the appointment of a proposed director.

(b) Each director of community services appointed prior to the effective date of this Part may continue as the director of community services and shall be eligible for reappointment in the same local governmental unit.

(c) Each director of community services appointed with an acting status prior to the promulgation of this Part and having at least one year of tenure prior to the effective date of this Part shall be approved individually by the IOCC for permanent appointment and shall not be subject to the standards in section 102.6 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.6 Qualifications

(a) Each director of community services appointed on or after the effective date of this Part shall meet the following requirements:

(1) the individual shall be a physician licensed to practice medicine in New York State who shall be deemed board certified or board eligible in psychiatry, neurology, pediatrics; or

(2) the individual shall be a psychologist who is currently licensed as a psychologist by the New York State Education Department; or

(3) the individual shall have obtained a master's degree in social work, and is currently licensed as a licensed master social worker or as a licensed clinical social worker by the New York State Education Department; or

(4) the individual shall have obtained a master's degree in psychiatric mental health nursing and shall be licensed by the New York State Education Department as a registered nurse; or

(5) the individual shall have obtained a master's degree in rehabilitation counselling, psychology, social work, public health administration, public administration, hospital administration, human services administration, business administration or other equivalent degrees as determined by a curriculum reviewed and approved by the New York State Education Department; and

(6) the individual must have obtained a degree or degrees from a college or university recognized by the New York State Education Department; and

(7) the individual with a doctoral degree or medical degree, or an individual with a master's degree shall have had at least five years of progressively responsible clinical and/or administrative experience in a governmental, private, not-for-profit or proprietary program providing services for people who have a diagnosis of mental illness, mental retardation, developmental disability, alcoholism or substance abuse. At least two of the five years shall include functioning in an administrative capacity for the management of a program in which the candidate was responsible for the overall direction and control of an identifiable organizational unit or program. Such experience shall be specifically related to the powers and duties of the director of community services in accordance with section 102.7 of this Part.

(b) When a local governmental unit appoints a director of community services with an administrative degree as defined in paragraph (a) (5) of this section, the local governmental unit shall also designate a senior level clinician with responsibilities for supervision of clinical services. Such designee shall have a clinical degree and licensure or certification in addition to demonstrable clinical work experience.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.7 Powers and duties

(a) The director of community services shall be subject to the provisions of article 41 of the Mental Hygiene Law regarding powers and duties and any other such requirements as may be lawfully delegated. The director of community services shall:

(1) serve as chief executive office of the local governmental unit and shall be a full-time employee, except in cases where the IOCC has expressly waived this requirement pursuant to the provision of section 102.8 of this Part;

(2) employ and remove such officers, employees and consultants as may be necessary for the work of the board within the amounts made available by appropriations;

(3) exercise general supervision and program monitoring over local services and local facilities;

(4) exercise general supervision over the treatment of patients who are receiving local or unified services or who are in local facilities;

(5) make recommendations to the board for the provision of services and the establishment of facilities, including contracts and other matters necessary as desirable to ensure the effective direction and administration of a local comprehensive service system;

(6) encourage the development and expansion of preventive, rehabilitation and treatment programs in the field of mental illness, mental retardation and developmental disabilities, alcoholism, and substance abuse;

(7) make an annual report to the board of the programs under the auspice of the local governmental unit, including a fiscal accounting;

(8) carry on such activities as may be appropriate to planning, advocacy, service coordination and quality assurance of local services and local facilities; and

(9) carry on such studies as may be appropriate for the discharge of duties.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 102.8 Waiver option for full-time director requirement

(a) The local governmental unit may request that the Inter-Office Coordinating Council waive the requirement that the director of community services be a full-time director, as set forth in section 102.7(a)(1) of this Part.

(b) The request for a waiver shall include a full description of the duties and responsibilities of the other position which the director of community services would hold, shall include a description of any known responsibilities which might cause a conflict between the two positions, shall estimate the amount of time required for the adequate performance of each of the positions and shall include a copy of the code of ethics adopted by the local governmental unit pursuant to General Municipal Law, article 18.

(c) The request shall be submitted, in its entirety, to the Chairperson of the Inter-Office Coordinating Council, who shall provide the other council members with duplicate copies. Each of the members shall review the request within 30 days of receipt and provide his or her recommendation back to the chairperson. The chairperson shall notify the local governmental unit of the determination of the majority of council members.

(d) In making a determination whether to grant the request for a waiver, the members of the Inter-Office Coordinating Council shall consider the following:

(1) Whether the director will have adequate time to competently perform all the functions, duties and responsibilities as the director of community services.

(2) Whether there will be a conflict of interest or incompatibility between the dual positions. In order to determine this, factors which may be considered include, but are not limited to, the following:

(i) Inconsistencies in the functions of the two positions, whereby the position holder could not fully and impartially discharge the duties of both positions without conflict.

(ii) The right of the holder of one position to interfere with the other, such as where one position is subordinate to or subject to audit and review by the other.

(3) Whether the code of ethics adopted by the locality, pursuant to General Municipal Law, article 18, would permit the holding of both positions by one individual.

(e) The director may, as part of his or her responsibilities, serve as director of a mental hygiene facility operated by the local governmental unit, if he or she meets the specific qualifications necessary for such position, without being required to obtain a waiver for such position.

Chapter VIII Drugs

Part 201 Pilot Clinic Programs For Treatment Of Drug Addiction

N.Y. Comp. Codes R. & Regs. Tit. 14 § 201.1 Prior approval of commissioner

No public or private agency shall establish or carry on experimental pilot clinic programs for the treatment of drug addiction which includes the administration of maintenance dosages of addicting drugs except with the prior approval of the Commissioner of Mental Hygiene and subject to his review and in conjunction with related experimental pilot clinic programs established by the commissioner.

Part 202 Special Facilities Certified By The Commissioner For Drug Addicts

N.Y. Comp. Codes R. & Regs. Tit. 14 § 202.1 Special facilities certified by the commissioner for drug addicts

Sections 204 and 205 of the Mental Hygiene Law provide that the commissioner shall establish and certify special facilities to be used exclusively for the care and treatment of narcotic addicts.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 202.2 Hospitals with special facilities certified

The following hospitals have been certified by the commissioner as having such special facilities:

Buffalo State Hospital, Buffalo, New York

Central Islip State Hospital, Central Islip, New York

Manhattan State Hospital, New York, New York

Middletown State Hospital, Middletown, New York

Pilgrim State Hospital, West Brentwood, New York

Utica State Hospital, Utica, New York.

Chapter IX Teacher Attendance Rules

Part 250 Attendance Rules For Teachers

N.Y. Comp. Codes R. & Regs. Tit. 14 § 250.1 Attendance

(a) Basic workweek. The basic workweek for annual salaried employees of State departments, agencies and institutions, other than those employed on a part-time basis only, and other than employees excluded from the application of overtime compensation under the rules of the Director of the Budget, adopted pursuant to section 134 of the Civil Service Law, shall be 40 hours; provided, however, that where a shorter workweek would not interfere with the proper performance of government functions, an appointing authority may establish a basic workweek of not less than 371/2 hours and five days for any employees under its appointive jurisdiction as may be designated by it with the approval of the Division of the Budget; provided, however, that this section shall not be construed to increase the workweek of any employee for whom a workweek of less than 40 hours was prescribed by law, rule or administrative regulation as of January 2, 1957.

(b) Record of attendance. All employees are required to maintain a daily record of absences and time and leave credits earned and used in accordance with these rules. A daily record of attendance shall be maintained during the period covered by the school calendar and for any periods during which an employee may receive compensation which is in addition to his regular salary.

(c) Overtime. Overtime shall be earned for time worked in excess of the basic workweek during the 10-month period an employee is paid his/her regular salary. An employee who is required to work in his/her position or in any other position allocated to a salary grade in section 130 of the Civil Service Law for the two-month period during which his/her regular salary is not paid shall receive additional compensation for such service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 250.2 Absence with pay

(a) Saturdays, Sundays and holidays.

(1) All Saturdays, Sundays and legal holidays shall, so far as practicable, be allowed as days off. Employees required to work on any of these days shall not be entitled to compensatory time off in lieu thereof.

(2) The days prescribed as holidays by the department's annual calendar for the school year shall be observed as holidays.

(b) Absences during school year. Except as provided by these rules and except as provided by the department's annual calendar for the school year, employees shall not be entitled to any leave of absence with pay during the school year; provided, however, that the department may grant time off with pay for religious observance, teacher conferences and other appropriate professional meetings, and for extraordinary or emergency absences. Employees may be required to make up such time off by appropriate adjustments in their daily or weekly work schedules.

(1) Sick leave is absence with pay necessitated by the illness or disability of the employee, including illness or disability caused by pregnancy or childbirth.

(2) Employees shall earn sick leave credits at the rate of one-half day per biweekly pay period during periods they are paid their regular salary and may accumulate such credits up to a total of 150 days; provided, however, that an employee shall not earn sick leave credit for any biweekly pay period unless he is in full pay status for at least seven workdays during such biweekly pay period. A part-time employee who is required to work a fixed number of hours, five days per week, shall also earn sick leave credit as provided herein, but his total pay when absent on such leave shall be the amount which would have been due him had he been working regularly at his usual hours for such period.

(3) An employee absent on sick leave shall notify his supervisor of such absence and the reason therefor on the first day of such absence and within two hours after the beginning of the employee's workday; provided, however, that where the work is such that a substitute may be required, the department may require earlier notification, but not more than two hours prior to the beginning of the employee's workday. An employee who fails to so notify his supervisor may be deemed to be on leave without pay for that day. Sick leave credits shall not be used in units of less than one-half hour.

(4) Before absence for personal illness may be charged against accumulated sick leave credits, the department may require such proof of illness as may be satisfactory to it, or may require the employee to be examined, at the expense of the department, by a physician designated by the department. In the event of failure to submit proof of illness upon request, or in the event that, upon such proof as is submitted or upon the report of medical examination, the department finds that there is not satisfactory evidence of illness sufficient to justify the employee's absence from the performance of his duties, such absence may be considered as unauthorized leave and shall not be charged against accumulated sick leave credits. Abuse of sick leave privileges shall be cause for disciplinary action.

(5) The department may require an employee who has been absent because of personal illness, prior to and as a condition of his return to duty, to be examined, at the expense of the department, by a physician designated by the department, to establish that he is not disabled from the performance of his normal duties and that his return to duty will not jeopardize the health of other employees.

(6) In addition to personal illness of the employee, the following types of absence, when approved by the appointing authority, may be charged against accumulated sick leave credits: illness or death in the employee's family, provided, however, that charge for such absence shall not exceed a maximum of 15 days in any one year; absence of an employee certified by an examining physician as benefiting from the use of a service animal in performing major life activities, an employee registered with the New York State Commission for the Blind and Visually Handicapped as legally blind or certified by an examining physician or licensed optometrist as legally blind, as manifested by visual acuity of 20/200 or less in the better eye with best correction or a visual field of 20 degrees or less, or an employee who has a hearing impairment manifested by a speech discrimination score of 40 percent or less in the better ear with appropriate correction as certified by an examining physician or by a licensed audiologist or otolaryngologist, for the purpose of obtaining a service animal or guide dog and required training related thereto, provided, however, that charge for such absence shall not exceed a maximum of 26 days in any one calendar year; and personal visits to doctor or dentist. Proof of the need for such absence, satisfactory to the appointing authority, may be required.

(7) When an employee is transferred to another position in the same or a different department or agency and such position is subject to attendance rules approved by the New York State Civil Service Commission, his accumulated sick leave credits shall be transferred with him. When an employee is separated from service for other than disciplinary reasons and is subsequently reinstated or reemployed within one year after separation, or is reinstated by action of the State Civil Service Commission, or is reinstated or reemployed while eligible for reinstatement from a preferred list, his sick leave credits accumulated and unused at the time of his separation shall be restored; provided, however, that such sick leave credits shall not be restored except when leave records satisfactory to the appointing authority are available.

(8) Every employee shall, on the date on which he becomes subject to these rules, be credited with the number of days of sick leave which he had accumulated under the Attendance Rules for Employees in New York State Departments and Institutions (see 4 NYCRR Chapter II) and had remaining to his credit as of such date.

(9) This subdivision shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation.

(d) Extended sick leave.

(1) The department may, in its discretion, advance sick leave credits to an employee absent due to personal illness who has exhausted his accumulated sick leave credits. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty, from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to any employee under the provisions of this section shall not at any time exceed a total of five days.

(2) The department may, in its discretion, upon written request from an employee certified by an examining physician as benefiting from the use of a service animal in performing major life activities, an employee registered with the New York State Commission for the Blind and Visually Handicapped as legally blind or certified by an examining physician or licensed optometrist as legally blind, as manifested by visual acuity of 20/200 or less in the better eye with best correction or a visual field of 20 degrees or less, or an employee who has a hearing impairment manifested by a speech discrimination score of 40 percent or less in the better ear with appropriate correction as certified by an examining physician or by a licensed audiologist or otolaryngologist, advance up to 26 days of sick leave to such employee who is absent for the purpose of obtaining a service animal or guide dog and required training related thereto, and who has exhausted accumulated leave credits, provided the cumulative total of sick leave credits charged and/or advanced for this purpose does not exceed 26 days in any one calendar year. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty, from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to any employee under the provisions of this subdivision shall not at any time exceed a total of 26 days.

(3) Upon termination of the employee's services, any such advance of sick leave not offset by subsequent accumulations of sick leave credits, shall be deducted from salary or wages due the employee.

(e) Sick leave at half pay. The department may, in its discretion, grant sick leave at half pay for personal illness to a permanent employee having not less than a year of service after all of his sick leave credits have been used; provided, however, that the cumulative total of all sick leave at half pay granted to any employee after January 2, 1957 shall not exceed one pay period for each complete six months of his State service.

(f) Workers' compensation leave.

(1) Leave for absence necessitated by occupational injury or disease. Except as otherwise provided in paragraphs (2) and (3) of this subdivision, an employee necessarily absent from duty because of occupational injury or disease as defined in the Workers' Compensation Law, upon giving notice to the department that he is absent on account of such injury or disease and that he claims benefits under such law, shall be allowed leave from his position for the period of absence necessitated by such injury or disease, up to cumulatively one year, including any periods of such absence during which the employee draws sick leave credits. Such leave may be extended for further periods in the discretion of the appointing authority.

(2) Controverted cases. If the employee's claim for benefits under the Workers' Compensation Law is controverted by the State Insurance Fund (at the request of the department or on its own initiative) and the department is so notified, the employee shall not be entitled to leave under this section. This shall not, however, adversely affect the employee's eligibility for leave under other provisions of these rules. If final determination of the controverted claim is in favor of the employee, he shall be entitled to leave under this section, and all absences before such final determination, to the extent that the same were necessitated by his occupational injury or disease, shall be deemed to have been pursuant to leave under this section.

(3) Permanent incapacity. Leave under this section may be withheld or terminated if the department determines that the occupational injury or disease suffered by the employee is of such a nature as to permanently incapacitate him for the performance of the duties of his position.

(4) Pay during leave. An employee on leave under this section may receive pay, as follows:

(i) The department upon finding that the employee is in fact disabled from the performance of his duties, may grant the employee full pay during such leave not exceeding cumulatively six months. Such full pay may be granted irrespective of the employee's accrued credits under these rules.

(ii) Except when on full pay status under subparagraph (i) of this paragraph, the employee may draw accrued sick leave credits, subject to the provisions of these rules pertaining thereto.

(iii) If not drawing full pay under subparagraph (i) or (ii) of this paragraph, an employee may, in the discretion of the department, be allowed to draw sick leave at half pay for which he may be eligible under these rules.

(5) Accrual of leave credits. An employee who receives full pay for any period of leave under this section shall earn sick leave credits during such period.

(6) Award credited to State. An award by the Workers' Compensation Board of compensation for any period for which the employee receives or received pay from the State shall be credited to the State as reimbursement of wages paid.

(7) Restoration of leave credits. Sick leave credits, including sick leave at half pay, used by an employee during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid shall be restored to him in full; provided, however, that no restoration shall be made for any absence of less than a full day. Credits so restored may not again be used for future absences attributable to the same injury. An employee restored to service after absence on leave under this section shall have one year from the date of such restoration to reduce his accrued leave credits to the limits prescribed in these rules.

(8) Reinstatement. Upon request of the employee for reinstatement at or prior to the expiration of the maximum period of allowed leave, the department, if in doubt as to whether the employee is physically and mentally fit to perform the duties of his position, may require the employee to undergo medical examination, by a physician designated by the department, before the employee may be reinstated. If reinstatement is denied, the employee may make application therefor in the manner prescribed by section 71 of the Civil Service Law. If an employee continues absent after the expiration of the maximum period of allowed leave, his eligibility for reinstatement shall be governed by section 71 of the Civil Service Law.

(9) Medical examination. In order to enable the department to make such determinations as are authorized or required under this section, the department may require an employee at any time to be examined by a physician designated by the department.

(10) Where the department has refused to grant the employee pay during leave pursuant to paragraph (4) of this subdivision, or, has withheld or terminated a leave of absence on the ground that the occupational injury or disease is of such a nature as to permanently incapacitate the employee for the performance of the duties of his position, the employee may request the Civil Service Commission to review the determination of the department. If the commission finds that such determination of the department is arbitrary or unreasonable, it may reverse or modify such determination.

(11) Construction. This section shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate.

(g) Leave for subpoenaed appearance and jury attendance. On proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this subdivision shall not apply to any absence by an employee occasioned by such an appearance if he is a party.

(h) Leave for civil service examinations. Employees shall be allowed leave with pay to take New York State Civil Service examinations at the appropriate center, provided that due notice is given by the employee to the department.

(i) Leave for quarantine. If an employee who is not ill himself is required to remain absent because of quarantine and presents a written statement of the attending physician or local health officer proving the necessity of such absence, he shall be granted leave with pay for the period of his required absence, without charge against accumulated sick leave credits. Prior to return to duty, such employee may be required to submit a written statement from the local health officer having jurisdiction that his return to duty will not jeopardize the health of other employees.

(j) Leaves required by law. The department shall grant any leave of absence, with pay, required by law.

(k) Leave for civil defense duties. Upon certification by the State Director of Civil Defense of the necessity for the participation in State or local civil defense drills of an employee enrolled as a civil defense volunteer and required to perform civil defense duties pursuant to the State Defense Emergency Act, the department may allow such employee to absent himself from his position, without loss of pay or charge against leave credits, for such time as is necessary for participation in such drills, but not exceeding cumulatively five workdays per calendar year.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 250.3 Leaves without pay

(a) Leave of absence; duration.

(1) A permanent employee or an employee holding a position by permanent or temporary appointment who requests leave because of pregnancy or childbirth, may, in the discretion of the appointing authority, be granted a leave of absence from her position, without pay, for a period not exceeding two years. Such leave may be extended beyond two years, for periods aggregating not in excess of an additional two years, only with the approval of the Civil Service Commission. In an exceptional case, a further extension may be permitted by the commission for good cause shown and where the interests of the government would be served. For the purposes of this section, time spent in active service in the military forces of the United States or of the State of New York shall not be considered in computing the period of leave.

(2) This subdivision shall not be construed to require the extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation.

(b) Successive leaves of absence. Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to subdivision (a) of this section, a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months immediately preceding the subsequent leave of absence.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 250.4 Suspension of rules

These rules may be suspended in whole or in part, in an emergency, for the duration of same and to the extent made necessary by the nature of the emergency, on approval by the State Civil Service Commission of a written request by the department.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 250.5 Amendment of rules

These rules may not be amended, except on approval by the State Civil Service Commission of a written request by the department.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 250.6 Applicability

(a) These attendance rules shall apply to the employees in the department who are employed in one of the positions listed below and whose principal duties involve the teaching or instruction of patients or inmates, or the direct supervision of such teaching or instruction; who are employed on the basis of a calendar year similar to the school calendar year of public school teachers in New York State; and who are compensated in accordance with section 136 of the New York State Civil Service Law:

(1) Teaching assistant, G-9.

(2) Vocational instructors I, G-12.

(3) Vocational instructors II, G-13.

(4) Vocational instructors III, G-15.

(5) Vocational instructors IV, G-17.

(6) Teacher I, G-12.

(7) Teacher II, G-13.

(8) Teacher III, G-15.

(9) Teacher IV, G-17.

(10) Education supervisors (group of classes), G-19.

(11) Education director I, G-22.

(b) These rules shall not be construed to require or allow extension of leave with pay except for periods during which the employee is normally paid his/her regular salary.

(c) The provisions of these attendance rules (or attendance regulations), insofar as they apply to employees in the negotiating units, established pursuant to article 14 of the Civil Service Law, shall be continued; provided, however, that during periods of time when there is in effect an agreement between the State and an employee organization reached pursuant to the provisions of said article 14, the provisions of such agreement and the provisions of such rules (or regulations) shall both be applicable. In the event the provisions of the agreement are different from the provisions of the attendance rules (or attendance regulations), the provisions of the agreement shall be controlling.

Part 251 Attendance Rules For Teachers Designated Managerial Or Confidential

N.Y. Comp. Codes R. & Regs. Tit. 14 § 251.1 Attendance

(a) Basic workweek. The basic workweek for annual salaried employees of State departments, agencies and institutions, other than those employed on a part-time basis only and other than employees excluded from the application of overtime compensation under the rules of the Director of the Budget adopted pursuant to section 134 of the Civil Service Law, shall be 40 hours; provided, however, that where a shorter workweek would not interfere with the proper performance of government functions the department may establish a basic workweek of not less than 371/2 hours and five days, or an authorized equivalent work schedule, for any employees under its appointive jurisdiction as may be designated by it with the approval of the Division of the Budget; provided, however, that this section shall not be construed to increase the workweek of any employee for whom a workweek of less than 40 hours is prescribed by law, rule or administrative regulation as of the day preceding the effective date [February 6, 1986] of these rules.

(b) Record of attendance. Daily time records showing actual hours worked by each employee shall be maintained during the period covered by the school calendar and for any period during which an employee may receive compensation in addition to regular salary; provided, however, that the department may, with the approval of the Department of Civil Service, exempt from this requirement such executives, officers and employees who do not earn overtime as it may designate. Employees exempt from maintaining daily time records showing actual hours worked shall maintain a daily record of absences and time and leave credits earned and used in accordance with these rules.

(c) Overtime. Overtime shall not be earned for time worked in excess of the basic workweek during the 10-month period an employee is paid his/her regular salary. An employee who is required to work in his/her position or in any other position allocated to a salary grade in section 130 of the Civil Service Law for the two-month period during which such regular salary is not paid shall receive additional compensation for such service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 251.2 Absence with pay

(a) For the purposes of this section:

(1) The term nonparticipant shall mean any employee subject to these rules in State service on December 31, 1985, including any employee on authorized leave of absence on such date and any person who was in State service prior to December 31, 1985 who, prior to said date, resigned, retired or who was otherwise separated from his/her position who is reemployed or reinstated to State service on or after January 1, 1986, who has creditable State service prior to January 1, 1986 and who is eligible for but declines to enroll or be enrolled in the Income Protection Plan established pursuant to the provisions of 4 NYCRR Part 78 and any such person who is not otherwise eligible to enroll or be enrolled in said plan. For the purpose of this section, an employee has prior creditable service if such person is reemployed within one year of resignation, retirement or termination or is reinstated by the Civil Service Department or Commission or by court order or is reemployed from or while eligible to be reemployed from a preferred list.

(2) The term enrolled employee shall mean any person subject to these rules who has enrolled, who must enroll or who has been enrolled in the Income Protection Plan established pursuant to the provisions of 4 NYCRR Part 78.

(3) The term ineligible shall mean any employee subject to these rules who is appointed on or after January 1, 1986 with no prior creditable service as defined in paragraph (1) of this subdivision who is not eligible to enroll or be enrolled in the Income Protection Plan established pursuant to the provisions of 4 NYCRR Part 78.

(b) Saturdays, Sundays and holidays.

(2) The days prescribed as holidays by the department's annual calendar for the school year shall be observed as holidays.

(3) No employee subject to these rules shall lose pay while employed in a teaching position during times other than the 10-month school year for days declared by the State as an employer to be special holidays provided such employee was scheduled to work on such days.

(c) Absences during school year. Except as provided by these rules and except as provided by the department's annual calendar for the school year, employees shall not be entitled to any leave of absence with pay during the school year; provided, however, that the department may grant time off with pay for religious observance, teacher conferences and other appropriate professional meetings and for extraordinary or emergency absences. Employees may be required to make up such time off by appropriate adjustments in their daily or weekly work schedules.

(d) Sick leave.

(1) Sick leave is absence with pay necessitated by the illness or disability of the employee including illness or disability caused by pregnancy or childbirth.

(2) Nonparticipant employees shall earn sick leave credits at the rate of one-half day per biweekly pay period and may accumulate such credits up to a total of 200 days; provided, however, that no more than 165 days of such credits may be accumulated to pay for health insurance in retirement in accordance with section 167 (4) of the Civil Service Law and provided, however, that an employee shall not earn sick leave credit for any biweekly pay period unless such employee is in full pay status for at least seven workdays during such biweekly pay period. A part-time employee who is required to work a fixed number of hours on a fixed schedule five days per week, or who is required to work at least half-time each biweekly pay period for a fixed number of hours on a fixed schedule shall also earn sick leave credit as provided herein, but total pay when absent on such leave shall be the amount which would have been due had such employee worked regularly at his/her usual hours for such period.

(3) Enrolled employees and ineligible employees who are on the payroll on the date on which sick leave credits are otherwise to be granted shall be entitled to 61/2 days of sick leave credits for each 10-month school year of service up to a total of 200 days; provided, however, that no more than 165 days of such credits may be accumulated to pay for health insurance in retirement in accordance with section 167 (4) of the Civil Service Law. Such sick leave shall be credited as follows:

(i) Such full-time employees shall be granted 31/4 days of sick leave credits on the first day of each semester of the school calendar beginning with the semester the first day of which follows the date on which such person first became subject to these rules; provided, however, that a person who elects to enroll in the Income Protection Plan pursuant to 4 NYCRR Part 78, shall immediately receive the prorated portion of 31/4 days of such sick leave credits, rounded to the next higher quarter day, based on the percentage of the semester remaining on the effective date of such election.

(ii) Such part-time employees shall be granted sick leave credits not to exceed 31/4 days on the first day of each semester which credits shall be prorated based on the percentage of full-time service such employee is scheduled to work on the sick leave grant dates.

(iii) Employees who are not in pay status on a date on which sick leave would otherwise be credited, shall be entitled to receive the prorated share of such leave credits, rounded to the next higher quarter day, based on the percentage of the semester remaining on the date they return to pay status, and, thereafter, on the first day of each succeeding semester for which they are otherwise eligible.

(4) An employee absent on sick leave shall notify the appropriate supervisor of such absence and the reason therefor on the first day of such absence and within two hours after the beginning of the employee's workday; provided, however, that where the work is such that a substitute may be required, the department may require earlier notification, but not more than two hours prior to the beginning of the employee's workday. Sick leave credits may be used in such units as the department may approve, but the department shall not require that sick leave credits be used in units greater than one-quarter hour.

(5) Before absence for personal illness may be charged against accumulated sick leave credits, the department may require such proof of illness as may be satisfactory to it, or may require the employee to be examined, at the expense of the department, by a physician designated by the department. In the event of failure to submit proof of illness upon request, or in the event that, upon such proof as is submitted or upon the report of medical examination, the department finds that there is not satisfactory evidence of illness sufficient to justify the employee's absence from the performance of his/her duties, such absence may be considered as unauthorized leave and shall not be charged against accumulated sick leave credits. Abuse of sick leave privileges shall be cause for disciplinary action.

(6) The department may require an employee who has been absent because of personal illness, prior to and as a condition of return to duty, to be examined, at the expense of the department, by a physician designated by the department, to establish that such employee is not disabled from the performance of his/her normal duties and that the return to duty will not jeopardize the health of other employees.

(7) In addition to personal illness of the employee, the following types of absence, when approved by the department, may be charged against accumulated sick leave credits: illness or death in the employee's family; provided, however, that charge for such absence shall not exceed a maximum of 15 days in any one year; absence of an employee certified by an examining physician as benefiting from the use of a service animal in performing major life activities, an employee registered with the New York State Commission for the Blind and Visually Handicapped as legally blind or certified by an examining physician or licensed optometrist as legally blind, as manifested by visual acuity of 20/200 or less in the better eye with best correction or a visual field of 20 degrees or less, or an employee who has a hearing impairment manifested by a speech discrimination score of 40 percent or less in the better ear with appropriate correction as certified by an examining physician or by a licensed audiologist or otolaryngologist, for the purpose of obtaining a service animal or guide dog and required training related thereto; provided, however, that charge for such absence shall not exceed a maximum of 26 days in any one calendar year; and personal visits to doctor or dentist. Proof of the need for such absence, satisfactory to the department, may be required.

(8) When an employee is transferred to another position in the same or a different department or agency and such position is subject to attendance rules approved by the New York State Civil Service Commission, accumulated sick leave credits shall be transferred with such employee. When an employee is separated from service for other than disciplinary reasons and is subsequently reinstated or reemployed within one year after such separation, or is reinstated by action of the State Civil Service Commission, or is reinstated or reemployed while eligible for reinstatement from a preferred list, sick leave credits accumulated and unused at the time of such employee's separation shall be restored; provided, however, that such sick leave credits shall not be restored except when leave records satisfactory to the department are available.

(9) Every employee shall, on the date on which he/she becomes subject to these rules, be credited with the number of days of sick leave which were accumulated under the Attendance Rules for Institution Teachers (14 NYCRR Part 250) and had remaining to his/her credit as of such date and thereafter shall be eligible to earn and be credited with sick leave as hereinabove provided.

(10) This subdivision shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation.

(e) Extended sick leave.

(1) The department may, in its discretion, advance sick leave credits to nonparticipants absent due to personal illness who have exhausted accumulated sick leave credits. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty, from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to any such employee under the provisions of this section shall not at any time exceed a total of five days.

(2) The department may, in its discretion, advance sick leave credits to ineligibles absent due to personal illness who have exhausted accumulated sick leave credits. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty, from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to any such employee under the provisions of this section shall not at any time exceed a total of three days.

(3) The department may, in its discretion, upon written request from an employee certified by an examining physician as benefiting from the use of a service animal in performing major life activities, an employee registered with the New York State Commission for the Blind and Visually Handicapped as legally blind or certified by an examining physician or licensed optometrist as legally blind, as manifested by visual acuity of 20/200 or less in the better eye with best correction or a visual field of 20 degrees or less, or an employee who has a hearing impairment manifested by a speech discrimination score of 40 percent or less in the better ear with appropriate correction as certified by an examining physician or by a licensed audiologist or otolaryngologist, advance up to 26 days of sick leave to such employee who is absent for the purpose of obtaining a service animal or guide dog and required training related thereto and who has exhausted accumulated leave credits, provided the cumulative total of sick leave credits charged and/or advanced for this purpose does not exceed 26 days in any one calendar year. Such advanced sick leave credits shall be repaid, as soon as practicable after the employee's return to duty from subsequent accumulations of time credits. The outstanding unrepaid sick leave credits advanced to an employee under the provisions of this subdivision shall not, at any time, exceed a total of 26 days.

(4) Upon termination of the employee's services any such advance of sick leave not offset by subsequent accumulations of sick leave credits, shall be deducted from salary or wages due the employee.

(f) Sick leave at half-pay. The department may, in its discretion, grant sick leave at half-pay for personal illness to nonparticipants and ineligibles having permanent status and having not less than one year of service after all sick leave credits have been used; provided, however, that the cumulative total of all sick leave at half-pay hereafter granted to any employee during such employee's State service shall not exceed one pay period for each complete six months of such State service.

(g) Personal leave.

(1) Personal leave is leave with pay for personal business including religious observance and extraordinary or emergency absences. Employees shall be entitled to personal leave not exceeding a total of three days in each school year.

(2) Personal leave may be drawn only at a time convenient to and approved in advance by the department; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted at such time without interference with the proper conduct of government functions.

(3) Personal leave may be used in such units of time as the department may approve, but the department shall not require that personal leave be used in units greater than one-quarter hour.

(4) A part-time employee who is required to work a fixed number of hours on a fixed schedule five days per week, or who is required to work at least half-time each biweekly pay period for a fixed number of hours on a fixed schedule shall also receive personal leave as provided herein, but total pay when absent on such leave shall be the amount which would have been due had such employee worked regularly at his/her usual hours for such period.

(h) Leave for extraordinary weather conditions and extraordinary circumstances.

(1) The department may, in its discretion, grant employees time off with pay charged to leave credits (other than sick leave) for absences necessitated by excessive heat or other extraordinary weather conditions.

(2) Employees who have reported for duty and because of extraordinary circumstances or extraordinary weather conditions are directed to leave work, shall not be required to charge such directed early departures to their leave credits.

(3) During a state of emergency declared by the Governor, employees directed by the Governor not to report for duty to official work stations within the specific geographic area covered by the emergency declaration shall not be required to charge such directed absences to their leave credits.

(i) Workers' compensation leave. This section governs leave for employees necessarily absent from duty because of an injury or disease arising out of and in the course of State employment. Paragraphs (1)-(14) of this subdivision inclusive, govern leave for those whose injury or disease occurred before September 1, 1986 and paragraphs (15)-(23) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1986 and before September 1, 1994, and paragraphs (24) through (31) inclusive, govern leaves for those whose injury or disease occurred on or after September 1, 1994.

(1) Except as otherwise provided in paragraphs (2) and (3) of this subdivision, an employee necessarily absent from duty because of an injury or disease arising out of and in the course of State employment which occurred or was suffered before September 1, 1986 shall be allowed leave from his/her position in accordance with the provisions of paragraphs (1)-(14) of this subdivision for the period during which the employee is unable to perform the duties of his/her position because of such injury or disease upon giving timely notice that such absence is the result of such injury or disease and that a claim has been or will be filed for benefits under the New York State Workers' Compensation Law. Such leave shall be permitted for all periods of absence resulting from such injury or disease, not to exceed a cumulative total of one year; provided, however, such leave may be continued for additional periods at the discretion of the department.

(2) Controverted cases. If the employee's claim for benefits under the Workers' Compensation Law is controverted by the State Insurance Fund, at the request of the department or on its own initiative, the employee shall not be allowed workers' compensation leave. If final determination of the controverted claim is in favor of the employee, eligibility for leave shall be determined as provided in paragraphs (1) and (3) of this subdivision for all absences necessitated by the occupational injury or disease.

(3) Leave may be withheld or terminated. Leave under paragraph (1) may be withheld or terminated if:

(i) the department determines that the employee is permanently incapacitated;

(ii) there is good and sufficient reason to believe that the employee's disability did not arise out of and in the course of employment with the State;

(iii) there is good and sufficient reason to believe that the employee's disability is primarily due to some preexisting medical condition;

(iv) there is good and sufficient reason to believe that the employee could report for work on a full-time or part-time basis;

(v) the employee has not upon request submitted satisfactory medical documentation of the claimed disability;

(vi) the employee fails or refuses to submit to a medical examination conducted by a physician selected by the department and at the expense of the department; or

(vii) the employee's services would have terminated or ceased under rule or law.

(4) Pay during leave. An employee allowed leave from his/her position pursuant to paragraph (1) of this subdivision shall receive pay during such leave for each separate injury or disease and regardless of the date of occurrence of such injury or disease, subject to the following proviso:

(i) For the first 10 working days of such leave in any one calendar year, but not exceeding 10 working days in any one continuous period of leave spanning successive calendar years, the employee shall charge such leave to accrued leave credits if any, subject to the exceptions listed in paragraph (5) of this subdivision; provided, however, that the cumulative total of leave credits so charged shall not exceed the number of hours normally and regularly worked by the employee in a biweekly pay period.

(ii) During a period of leave under subparagraph (i) of this paragraph, the department shall advance up to 10 days of sick leave credits to an employee eligible to accrue leave credits but who has exhausted all such leave accruals, unless such employee requests otherwise in writing (except where such 10-day period is waived pursuant to paragraph [5] of this subdivision), and such advanced sick leave credits shall be repaid as soon as practicable from subsequent accumulations of leave credits in a manner to be determined by the department; provided, however, that the cumulative total of leave credits so advanced shall not exceed the number of hours normally and regularly worked by the employee in a biweekly pay period.

(iii) The cumulative total of leave with full pay for each separate injury or disease granted pursuant to paragraph (1) of this subdivision shall not exceed six calendar months.

(iv) Upon exhausting leave with pay benefits under subparagraph (iii) of this paragraph, the employee shall be allowed to draw accrued leave credits.

(v) Upon exhausting leave with pay benefits under subparagraphs (iii) and (iv) of this paragraph, the employee shall be allowed sick leave at half-pay for which such employee may be eligible.

(5) Waiver of 10-day waiting period. Notwithstanding the proviso set forth in paragraph (4) of this subdivision, the following conditions will also apply:

(i) If the employee is required by a physician to be admitted as an inpatient to a hospital during the first 10 consecutive working days after the occurrence of an occupational injury or disease in any one calendar year and otherwise qualifies for such leave pursuant to paragraphs (1)-(14) of this subdivision, the employee shall not be required to charge leave credits for the first 10 days of such leave.

(ii) If the employee is required to be absent for a period of 20 consecutive working days or more following the occurrence of an occupational injury or disease in any one calendar year and otherwise qualifies for such leave pursuant to paragraphs (1)-(14) of this subdivision, the employee shall not be required to charge leave credits for the first 10 days of such leave.

(iii) Where an employee is required by the employer, the State Insurance Fund or Workers' Compensation Board to attend a medical examination or a hearing during the first 10 working days of such leave in any one calendar year and otherwise qualifies for such leave pursuant to paragraphs (1)-(14) of this subdivision, the employee shall not be required to charge leave credits for the time required, including reasonable travel time for such medical exam or hearing during such 10 working days.

(iv) Upon written application by an employee within 45 days of the occurrence of an occupational injury or disease, the head of the department or his/her designee may, in his/her discretion, waive the requirement that an employee charge or repay, if advanced, the first 10 working days of such leave in any one calendar year to accrued leave credits. The decision of the head of the department, or his/her designee, shall not be reviewable.

For the purposes of this paragraph, occurrence shall also be deemed to mean the commencement of an absence due to the reoccurrence in subsequent calendar years of an occupational injury or disease.

(6) Employee may elect to draw leave credits. An employee allowed leave with pay under paragraphs (1)-(14) of this subdivision may elect to draw accrued leave credits for part or all of such employee's absences from duty before being granted leave with pay under paragraph (4) of this subdivision.

(7) Absences of less than a full day. An employee who is necessarily absent from duty as described hereinabove may be granted compensation leave with pay without charge against leave credits for absences of less than a full day.

(8) Leave for hearings and medical examination. An employee who is allowed leave with full pay as provided in paragraph (4) of this subdivision shall be allowed such leave with pay when absent from duty for the purpose of attending a hearing scheduled by the Workers' Compensation Board or a board-ordered medical examination or visiting a doctor for examination or treatment subject to the proviso set forth in paragraph (4) of this subdivision.

(9) Accrual of leave credits. An employee who receives full pay for any period of leave under this section shall earn leave credits during such period.

(10) Reimbursement by employee. If it is subsequently determined that an employee was not entitled to compensation leave with pay without charge to leave credits for any period for which such employee was granted such leave as provided hereinabove, the employee shall be required to make reimbursement for such paid leave from current or subsequent accumulations of leave credits at a rate and in a manner determined by the department.

(11) Restoration of leave credits. An employee who draws leave credits or is allowed sick leave at half-pay as provided in paragraph (4) of this subdivision shall be entitled to restoration of such credits and such sick leave at half- pay eligibility, excluding leave credits charged pursuant to subparagraph (4)(i) of this subdivision or advanced pursuant to subparagraph (4)(ii) of this subdivision, but including those used for absences of less than a full day, as are used during a period of absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Credits so restored may not again be used for future absences attributable to the same injury or disease. An employee who returns to duty after absence on leave under this section shall have one year from the date of such return or restoration of credits to reduce his/her accrued leave credits, exclusive of personal leave, to the prescribed limits. Personal leave may not be restored as provided herein if the award of compensation is received after the last day of the school year in which the personal leave was used.

(12) Return to duty. Upon request of the employee to report for duty from compensation leave, the department, if in doubt as to whether the employee is physically and mentally fit to perform the duties of his/her position, may require the employee to undergo medical examination, by a physician designated by the department, before the employee may be restored to duty.

(13) Medical examination. In order to enable the department to make such determinations as are authorized or required under paragraphs (1)-(14) of this subdivision, the department may require an employee at any time to be examined by a physician designated by the department.

(14) Construction. The provisions of paragraphs (1)-(14) of this subdivision shall not be construed to require extension of any employment beyond the time at which it would otherwise terminate or to require the granting of any leave benefits provided herein solely because of determinations made by the Workers' Compensation Board.

(15) Workers' compensation benefits for injuries or diseases suffered on or after September 1, 1986.

(i) Except as otherwise provided in paragraphs (15) through (23) of this subdivision, an employee necessarily absent from duty because of an injury or disease arising out of and in the course of State employment which occurred or was suffered on or after September 1, 1986 shall be allowed leave from his/her position in accordance with the provisions herein for the period during which the employee is unable to perform the duties of his/her position because of such injury or disease upon giving timely notice that such absence is the result of such injury or disease and that a claim has been or will be filed for benefits under the New York State Workers' Compensation Law. Such leave shall be permitted for all periods of absence resulting from such injury or disease, not to exceed a cumulative total of one year; provided, however, such leave may be continued for additional periods at the discretion of the department. Such leave may be denied or terminated if the department determines that the employee is permanently incapacitated or the employee's services would have otherwise been terminated or ceased under rule or law.

(ii) No leave shall be allowed under paragraphs (15) through (23) of this subdivision if the State Insurance Fund contests a claim filed by an employee, whether at the request of the department or on its own initiative, because it is alleged that such injury or disease did not occur on the job or the employee has not suffered any such injury or disease. If such claim is resolved in favor of the employee, eligibility for leave shall be determined as provided in this subdivision for all absences necessitated by the occupational injury or disease. In the event a person who has returned to work claims that he or she has suffered a reoccurrence of a previous injury or disease, which claim is then contested, such claim shall be deemed a new claim for the purpose of this subdivision unlss resolved in favor of the employee.

(16) Compensation and pay benefits. An employee on leave from his/her position pursuant to paragraph (15) of this subdivision shall receive compensation or pay benefits during such leave for each separate injury or disease occurring on or after September 1, 1986 as hereinafter provided:

(i) During the period of absence for which payment is being made pursuant to Title 4 NYCRR Part 89 (President's Regulations), an employee shall be deemed to be in full paid leave status.

(ii) An employee who has been absent for less than one year and who has exhausted the supplemental benefit shall, while receiving benefits pursuant to the Workers' Compensation Law, be continued on the payroll at full pay until the employee's leave accruals, if any, have been exhausted, unless such employee requests that he or she not be so continued on the payroll, or if in such status, that such leave with pay be discontinued.

(iii) An employee who has been absent for less than one year shall, upon exhausting all accrued leave credits and while receiving benefits pursuant to the Workers' Compensation Law, be granted such sick leave at half-pay for which the employee is otherwise eligible.

(iv) Nothing herein shall prevent the department from continuing an employee on leave with pay pursuant to subparagraph (ii) or (iii) of this paragraph in excess of one year if the employee is otherwise eligible to be continued on such leave.

(17) Waiting periods.

(i) An employee who is absent for seven or fewer calendar days due to a single occupational injury or disease shall be permitted to charge such absence to accrued leave credits or shall be granted a leave without pay for such period of absence.

(ii) An employee who is absent for more than seven but fewer than 15 calendar days for a single occupational injury or disease shall be permitted to charge such absence up to the eighth calendar day to leave credits or shall be granted a leave without pay for such period of absence. Leave credits used for days of absence commencing on the eighth calendar day shall be recredited upon return to work or upon receipt of payment pursuant to said Part 89, whichever occurs first.

(iii) An employee who is absent for 15 or more calendar days for a single occupational injury or disease shall have any accrued leave credits used during any waiting period recredited upon return to work or upon receipt of payment pursuant to said Part 89, whichever occurs first.

(18) Advanced leave credits. An employee eligible for benefits pursuant to the Workers' Compensation Law who has used all leave accruals to which he or she is entitled and is not yet receiving payments pursuant to said Part 89 shall be granted "advanced leave" at full pay upon request filed with the department on a form to be provided by the State in accordance with and subject to the terms and conditions set forth in said Part 89.

(19) Election to draw leave credits. An employee allowed leave under paragraphs (15) through (23) of this subdivision may elect to draw accrued leave credits for part or all of such employee's absences from duty before being granted the supplemental benefit pursuant to said Part 89.

(20) Accrual of leave credits. An employee who receives a supplemental benefit pursuant to said Part 89 for any period of leave pursuant to paragraphs (15) through (23) of this subdivision shall earn leave credits during such period in accordance with this section.

(21) Restoration of leave credits. Notwithstanding any limitations on the accumulation of leave accruals to the contrary, an employee who uses his/her accrued leave credits or is granted sick leave at half-pay as provided in subparagraphs (16)(ii) and (iii) of this subdivision shall be entitled to the restoration of such credits and such sick leave at a half-pay eligibility as he or she may have used during any period of such absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Leave credits so restored may not be used in the future for absences attributable to the same injury or disease. An employee shall have one year from the date of return to duty or restoration of credits, whichever is later, to reduce his/her accrued leave credits, exclusive of personal leave, to the maximum limits otherwise prescribed in these rules. Personal leave shall not be restored to any employee if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave would have been otherwise credited.

(22) Return to duty. Upon request of the employee to report for duty following absence due to occupational injury or disease, if the department is uncertain as to whether the employee is physically and mentally fit to perform the duties of his/her position, the employee shall be required to be examined by a physician designated by the department before being permitted to return to duty.

(23) Construction. Nothing in paragraphs (15) through (22) of this subdivision shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.

(24)

(i) Workers' compensation benefits for injuries or diseases suffered on or after September 1, 1994. Except as otherwise provided in paragraphs (24) through (31) of this subdivision, an employee necessarily absent from duty because of an injury or disease arising out of and in the course of State employment which occurred or was suffered on or after September 1, 1994, shall be allowed leave from his or her position in accordance with the provisions herein for the period during which the employee is unable to perform the duties of his or her position because of such injury or disease upon giving timely notice that such absence is the result of such injury or disease and that a claim has been or will be filed for benefits under the New York State Workers' Compensation Law. Such leave shall be permitted for all periods of absence resulting from such injury or disease, not to exceed a cumulative total of one year; provided, however, such leave may be continued for additional periods at the discretion of the appointing authority. Such leave may be denied or terminated if the appointing authority determines that the employee is permanently incapacitated or the employee's services would have otherwise been terminated or ceased under rule or law. No leave shall be allowed under paragraphs (24) through (31) of this subdivision if the State Insurance Fund controverts or contests a claim filed by an employee, whether at the request of the appointing authority or on its own initiative, because it is alleged that such injury or disease did not occur on the job or the employee has not suffered any such injury or disease. If such claim is resolved in favor of the employee, eligibility for leave shall be determined as provided in this subdivision for all absences necessitated by the occupational injury or disease. In the event a person who has returned to work claims that he or she has suffered a reoccurrence of a previous injury or disease, which claim is then contested, such claim shall be deemed a new claim for the purpose of this subdivision unless resolved in favor of the employee.

(ii) Upon granting workers' compensation leave pursuant to this subdivision, the appointing authority shall provide the employee in writing with the notice specified in 4 NYCRR, section 5.9(b), within the time prescribed by that rule.

(iii) No less than 30 days nor more than 60 days prior to the anticipated expiration of an employee's workers' compensation leave, or the effective date of a termination of the leave by the employer pursuant to section 71 of the Civil Service Law upon a finding that the unfitness to perform the duties of the position is permanent where that determination does not arise from a hearing, the appointing authority shall provide the employee in writing with the notice specified in 4 NYCRR, section 5.9(c)(2). If for any reason less than 30 days would remain prior to the date of termination of leave, if that termination is not the result of a hearing, service of the notice shall be deemed to be a grant by the appointing authority of an extension of the leave to a date 30 days from the date of service of this notice.

(25) Benefits. An employee on leave from his or her position pursuant to paragraph (24) of this subdivision shall, for each separate injury or disease occurring on or after September 1, 1994, be placed on workers' compensation disability leave without pay for all absences and shall receive benefits pursuant to the Workers' Compensation Law.

(26) Election to draw leave credits.

(i) An employee allowed leave under paragraphs (24) through (31) of this subdivision may elect to draw accrued leave credits for part or all of such employee's absences from duty.

(iii) A nonparticipant or ineligible employee allowed leave under paragraphs (24) through (31) of this subdivision may elect to use any sick leave at half-pay to which that employee is entitled.

(iii) An enrolled employee allowed leave under paragraphs (24) through (31) of this subdivision shall be allowed to apply for benefits under Part 78, Income Protection Plan, of Title 4 NYCRR to which he/she may be entitled.

(27) Accrual of leave credits. Notwithstanding any Attendance Rule to the contrary, and regardless of pay status, an employee absent in accordance with paragraph (25) of this subdivision shall earn leave credits for the first 12 cumulative months of such absence.

(28) Holiday observance. An employee on leave in accordance with paragraph (25) of this subdivision on days prescribed as holidays by the department's annual calendar for the school year, and who is not drawing against accrued leave credits pursuant to subparagraph (26)(i) of this subdivision, shall not be eligible to observe such days as paid holidays nor be eligible for compensatory time off in lieu thereof.

(29) Restoration of leave credits. Notwithstanding any limitations on the accumulation of leave accruals to the contrary, an employee who uses his or her accrued leave credits or is granted sick leave at half-pay as provided in paragraph (26) of this subdivision or in connection with a contested or controverted claim which is subsequently resolved in the employee's favor by the Workers' Compensation Board shall be entitled to the restoration of such credits and such sick leave at half-pay eligibility proportional to the net monetary award credited to New York State by the Workers' Compensation Board or proportional to 60 percent of the employee's gross salary, whichever is greater, as he or she may have used during any period of such absence for which an award of compensation has been made and credited to the State as reimbursement for wages paid. Gross salary is defined as the employee's base annual salary rate plus inconvenience and location pay and geographic and shift differential pay to which the employee was entitled at the time of the accident. Leave credits so restored may not be used in the future for absences attributable to the same injury or disease. An employee shall have one year from the date of return to duty or restoration of credits, whichever is later, to reduce his or her accrued leave credits, exclusive of personal leave, to the maximum limits otherwise prescribed in this Part. Personal leave shall not be restored to any employee if the award of compensation is received more than 12 months following the personal leave anniversary date on which such personal leave would otherwise have been credited.

(30) Return to duty. Upon request of the employee to report for duty following absence due to occupational injury or disease, and prior to the expiration of the maximum period of allowed leave, if the appointing authority is uncertain as to whether the employee is physically and mentally fit to perform the duties of his or her position, the employee shall be required to be examined by a physician designated by the appointing authority before being permitted to return to duty pursuant to the procedures of 4 NYCRR section 5.9 of the Rules for the Classified Service.

(31) Construction. Nothing in paragraphs (24) through (31) of this subdivision shall be construed to require extension of any employment beyond the time at which it would otherwise terminate or be terminated.

(j) Leave for subpoenaed appearance and jury attendance. On proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this section shall not apply to any absence by an employee occasioned by such an appearance as a party.

(k) Leave for civil service examination.

(1) Employees shall be allowed leave with pay to take New York State Civil Service examinations for State positions at the appropriate center, provided that due notice is given by the employee to the department. Leave shall be allowed for written, oral, physical and performance tests and for interviews from eligible lists, or for transfers providing the employee has not initiated the interview.

(2) Employees whose work shifts end less than eight hours prior to the starting time of an examination may, at the discretion of the department, be allowed leave with pay for part of such shifts.

(l) Leave for quarantine. If an employee who is not personally ill is required to remain absent because of quarantine and presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence, without charge against leave credits. Prior to return to duty, such employee may be required to submit a written statement from the local health officer having jurisdiction that return to duty will not jeopardize the health of other employees.

(m) Leaves required by law. The department shall grant any leave of absence, with pay, required by law.

(n) Leave for civil defense duties. Upon certification by the State Director of Civil Defense of the necessity for the participation in State or local civil defense drills of an employee enrolled as a civil defense volunteer and required to perform civil defense duties pursuant to the State Defense Emergency Act, the department may allow such employee to be absent, without loss of pay or charge against leave credits, for such time as is necessary for participation in such drills, but not exceeding cumulatively five workdays per school year.

(o) Leave for professional meetings. Subject to prior approval by the department, each employee may be allowed time off without charge to leave credits to attend conferences or seminars of recognized professional organizations, such conferences or seminars to be directly related to the employee's profession or professional duties. Requests for such leave may be approved to the extent that such absence would not interfere with the proper conduct of governmental functions.

(p) Leave for professional examination.

(1) Upon proper advance notice, an employee may be allowed leave with pay without charge to leave credits for the purpose of participating in one professional examination each year in such employee's discipline. In the event such examination is administered in several parts, the several parts shall be considered a single examination. Absence required for travel shall be charged to appropriate leave credits.

(2) If an employee is scheduled to work on a shift which ends within eight hours of commencement of such professional examination, the department may adjust the employee's work schedule or allow leave with pay charged to appropriate leave credits for part or all of such work shift.

(q) Absence with pay for illness of certain managerial/confidential employees charged to donated leave credits.

(1) This subdivision governs the transfer of vacation credits to eligible employees, as defined herein, for use for absences in connection with an illness or disability which did not arise in connection with such individual's employment.

(2) Eligibility to receive donated credits. In order to be eligible to receive donated credits an employee must be subject to this Part and eligible to earn leave accruals, must have completed at least one cumulative year of State service, must be absent due to a non-occupational personal illness or disability for which medical documentation satisfactory to management is submitted as required, must have exhausted all leave credits and must be expected to be absent for at least two biweekly payroll periods following exhaustion of leave credits or sick leave at half-pay. The employee must not have had any disciplinary actions or unsatisfactory performance evaluations within his/her last three years of State employment.

(3) Use of donated leave credits.

(i) For nonparticipant and ineligible employees subject to the sick leave provisions of this section, donated credits may be used at employee option either in full-day units following exhaustion of all available leave credits and prior to any sick leave at half-pay available to the employee pursuant to subdivision (f) of this section or in either full-day or half-day units following exhaustion of all available leave credits and any sick leave at half-pay available to the employee pursuant to subdivision (f) of this section.

(ii) For enrolled employees subject to this section, donated credits may be used in full-day units after all available leave credits are exhausted and prior to receipt of any disability benefits available to the employee pursuant to that subdivision.

(4) Eligibility to earn accruals. Employees absent while charging donated leave credits pursuant to this subdivision shall not earn sick leave, shall not be granted personal leave and shall not be eligible to observe holidays. Absences charged to donated leave credits shall be treated as leave without pay.

(5) Medical documentation. Before absence for personal illness may be charged against donated leave credits, the appointing authority may require such proof of illness as may be satisfactory to it, or may require the employee to be examined, at the expense of the department, by a physician designated by the appointing authority. In the event of failure to submit proof of illness upon request, or in the event that, upon such proof as is submitted or upon the report of medical examination, the appointing authority finds that there is not satisfactory evidence of illness sufficient to justify the employee's absence from the performance of his/her duties, such absence may be considered as unauthorized leave and shall not be charged against donated leave credits. Abuse of leave privileges shall be cause for disciplinary action.

(6) Return to work. The appointing authority may require an employee who has been absent because of personal illness charged to donated leave credits, prior to and as a condition of return to duty, to be examined, at the expense of the department, by a physician designated by the appointing authority, to establish that such employee is not disabled from the performance of his/her normal duties and that the return to duty will not jeopardize the health of other employees.

(7) Donation of credits.

(i) Vacation credits may be donated by employees who are subject to this Part and are employed in the same agency as the intended recipient employee. Where an agreement exists between the State and an employee organization, recognized or certified pursuant to article 14 of the Civil Service Law to represent a bargaining unit of State employees, which permits leave donations between employees of different agencies, the employees subject to this section may donate leave credits to employees eligible to receive donated leave credits who are employed by an agency other than the agency of the donor employee.

(ii) Limits on donation of credits. Such donations shall not cause the donor employee to have fewer than 10 days of vacation standing to his/her credit upon making such donation. Employees may not donate vacation credits which would otherwise be forfeited.

(iii) Return of donated credits. Donated leave credits unused and standing to the recipient employee's credit at time of return to work or separation from State service shall be returned to the employees who donated those unused credits.

(8) Donation exchange agreements. During the effective period of an applicable donation exchange agreement between the Governor's Office of Employee Relations and an employee organization, recognized or certified pursuant to article 14 of the Civil Service Law to represent a bargaining unit of State employees, providing for donation of vacation credits, pursuant to an authorized leave donation program to employees subject to this subdivision and employees subject to the leave donation program for that bargaining unit, such vacation credits may be received by an employee subject to this subdivision from an employee within such bargaining unit. Such credits shall be transferred and utilized in accord with the applicable donation exchange agreement and this subdivision or any such bargained program as applicable. Any donation exchange agreement shall be effective upon filing with the President of the Civil Service Commission and shall terminate 10 days after notice in writing by either party is served upon the President and the other party to the agreement.

(9) Construction. This subdivision shall not be construed to require extension of any employment beyond the time it would otherwise terminate by operation of law, rule or regulation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 251.3 Leaves without pay

(a) Leave of absence; duration.

(1) A permanent employee, or an employee holding a position by permanent or temporary appointment who requests leave because of pregnancy or childbirth, may, in the discretion of the department, be granted a leave of absence, without pay, for a period not exceeding two years. Such leave may be extended beyond two years, for periods aggregating not in excess of an additional two years, only with the approval of the Civil Service Commission. In an exceptional case, a further extension may be permitted by the commission for good cause shown and where the interests of the government would be served. For the purposes of this section, time spent in active service in the military forces of the United States or of the State of New York shall not be considered in computing the period of leave.

(2) This subdivision shall not be construed to require the extension of any employment beyond the time at which it would otherwise terminate by operation of law, rule or regulation.

(b) Successive leaves of absence. Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to subdivision (a) of this section, a further leave of absence without pay shall not be granted unless the employee returns to his/her position and serves continuously therein for six months immediately preceding the subsequent leave of absence.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 251.4 Suspension of rules

N.Y. Comp. Codes R. & Regs. Tit. 14 § 251.5 Amendment of rules

These rules may not be amended except on approval by the State Civil Service Commission of a written request by the department.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 251.6 Applicability

(a) These attendance rules shall apply to the employees in the department who are employed in the position listed below and whose principal duties involve teaching or instruction of patients or inmates, or the direct supervision of such teaching or instruction; and who are employed on the basis of a calendar year similar to the school calendar year of public school teachers in New York State; and who are compensated in accordance with section 136 of the New York State Civil Service Law; and who are designated as managerial/confidential under section 201, article 14 of the Civil Service Law:

Education director II, G-24.

(b) These rules shall not be construed to require or allow extension of leave with pay except for periods during which the employee is normally paid his/her regular salary.

Chapter X Alcoholism

Part 304 Designation Of Emergency Care Services For Intoxicated Persons And Persons Incapacitated By Alcohol

N.Y. Comp. Codes R. & Regs. Tit. 14 § 304.1 Introduction

(a) Since the decriminalization of public intoxication in 1976, a number of different types of services have been established in New York State to provide for the welfare of persons intoxicated in public who, for whatever reason, cannot be taken to their homes or residences. In accordance with the provisions of section 21.09 of the Mental Hygiene Law, all services for this purpose are required to be approved by the commissioner.

(b) In accordance with the provisions of section 21.09 of the Mental Hygiene Law, this Part deals with two classes of public inebriates; section 304.3 of this Part relates specifically to persons who are only intoxicated, while section 304.4 of this Part relates specifically to persons who are incapacitated by alcohol.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 304.2 Definitions

As used in this Part, the terms below shall have the following meanings:

(a) Director. The director of the New York State Division of Alcoholism and Alcohol Abuse.

(b) Director of community services. A person who is the chief executive officer of a local governmental unit by whatever title known, as provided in article 41 of the Mental Hygiene Law.

(d) Incapacitated by alcohol. Any person who, as a result of the use of alcohol, is unconscious or has his or her judgment so impaired that he or she is incapable of realizing and making a rational decision with respect to his or her need for treatment.

(e) Intoxicated person. A person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol in his or her body.

(f) Emergency care services. Programs or services which have been established to provide safe, secure environments, care and observation of intoxicated persons. Emergency care services include, but are not limited to, alcohol crisis centers. No alcohol crisis center may operate without the prior approval and certification of the commissioner pursuant to Part 366 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 304.3 Emergency care services for persons incapacitated by alcohol

(a) Special requirements.

(1) Persons who are or appear to be incapacitated by alcohol shall be taken only to facilities or services which have been designated in accordance with the provisions of this section.

(2) Each such designated facility or service shall have a physician regularly available at all times to provide emergency service, either on duty or on call.

(b) Procedural requirements.

(1) Non-objecting persons.

(i) Examination. Whenever a person who is, or appears to be, incapacitated by alcohol is brought to such designated facility or service and does not object to being brought thereto, such person shall be examined immediately to determine whether he or she is incapacitated.

(ii) Found not to be incapacitated. If after such examination, such person is found not to be incapacitated, he or she must be released with an appropriate referral made, unless such facility or service has also been designated as appropriate for intoxicated persons, in which case such person may be retained.

(iii) Found to be incapacitated. If after such examination, such person is found to be incapacitated, he or she may be retained in such facility or service.

(2) Objecting persons.

(i) Examination. Whenever a person who is, or appears to be, incapacitated by alcohol is brought to any such designated facility or service and who objects to being brought thereto, or remaining therein, such person shall be examined by a physician as soon as possible.

(ii) Found not to be incapacitated. If, after such examination, such person is found not to be incapacitated, he or she must be released with an appropriate referral made.

(iii) Found to be incapacitated. If, after such examination, such person is found to be incapacitated to the degree that he or she may endanger self, other persons or property, he or she may be retained in such facility or services over his or her objection until no longer incapacitated to such degree or no longer than a period of 24 hours, whichever occurs first.

(c) Designated facilities or services. The following have been designated by the director to provide emergency care and treatment to persons incapacitated by alcohol:

(1) emergency rooms of general hospitals; and

(2) facilities with inpatient detoxification programs which have been certified by the director.

(d) Other designated facilities or services. The director may also designate other facilities or services for the emergency care and treatment of persons incapacitated by alcohol as appear to be necessary and proper in accordance with the following procedures:

(1) Such other facility or service shall be recommended in writing to the director as appropriate for such designation by the appropriate director of community services.

(2) Any such recommendation shall contain documentation that the facility or service is willing and has a plan to provide such emergency care and treatment. Such documentation shall include information relating to physical plant, staffing, staff qualifications, and hours of operation.

(3) If approved by the director, such facility or service shall provide such care and treatment only in accordance with the written notification that the director has duly designated such facility or service to provide such services.

(e) List of services. The division shall maintain a current list of certified or designated emergency care facilities or services for persons incapacitated by alcohol.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 304.4 Notification of family and others

(a) Notification with consent. Staff of an emergency care service may notify family members or other individuals of a person's presence at the service if the person gives written consent to such notification in accordance with subdivision (b) of this section.

(b) Notification consent form. Consent for notification of family or significant others of a person's receipt, attempted receipt or refusal to receive emergency care shall be in writing and shall contain the following:

(1) the name of the service that is to make the notification;

(2) the name of the person or persons to whom the notification is made;

(3) the name of the client or patient receiving the service;

(4) the purpose or need for the notification;

(5) the nature of extent of information to be disclosed;

(6) a statement that the consent may be revoked by the patient/client at any time except to the extent that action has been taken thereon and a specification of the date, event or condition upon which it will expire without express revocation;

(7) the date on which the form is signed; and

(8) the signature of the client or patient.

(c) Notification without consent. Whenever a person who is suffering from a serious medical condition and is incapable of rational communication is being treated at a designated facility or service, the treating physician may, in his discretion, give notification of such person's whereabouts and condition to a member of the person's family or to a significant other with whom such person is known to have a responsible personal relationship.

Part 305 Preventive Counseling Services For Children Of Alcoholics Or Alcohol Abusers

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.1 Introduction

Living in a home with an alcoholic or alcohol abusing person, whether parent, sibling, grandparent, guardian or other person, can be difficult for a child, and the combined problems in the household relationships and environment may have adverse effects on such a child not only in childhood, but in adulthood as well. Research and clinical evidence have shown that children in alcoholic households are at higer risk in developing alcoholism or other alcohol related problems themselves than are their peers who grow up in homes where alcoholism or alcohol abuse is not present. Regrettably, such children are often reluctant to seek help from available resources such as school guidance counselors, clergymen or even from relatives and are often unaware of or unfamiliar with other available community resources. It is essential for the welfare of such children that competent, sympathetic and caring help provided by qualified professionals in the form of preventive alcoholism counseling services be available to them throughout the State.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.2 Legal base

The powers and duties of the Division of Alcoholism and Alcohol Abuse, as set forth in section 19.07, subdivision (a) of the Mental Hygiene Law, include the implementation of a program of services adapted to the needs and interests of young people as well as the promotion of programs for the prevention of alcoholism and alcohol abuse.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.3 Definitions

As used in this Part, the terms listed in this section shall have the following meanings:

(a) Preventive alcoholism counseling. Individual and group counseling and didactic education regarding alcohol and its effects, assistance in the provision by other staff of activities, experience and therapies, general guidance, support and service coordination which is provided to a person at special risk in order to prevent alcoholism, alcohol abuse and related problems.

(b) Child. Any person under 18 years of age who is not married and is not a parent.

(d) Qualified professional. A physician, nurse, credentialed alcoholism counselor, certified social worker, or a licensed psychologist, as defined in section 330.3(j) of this Chapter.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.4 Applicability

This Part applies to any facility in New York State, which has been certified by the division or an out patient facility certified by the Office of Mental Health which has on its staff one or more persons who specialize in the treatment of alcoholism and other alcohol related problems. When any such facility provides preventive alcoholism counseling services to a child whose parent is an alcoholic or alcohol abuser or who is living in a home with an alcoholic abusing person, such services shall be provided in accordance with the provisions of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.5 Facility requirements

Any facility which provides preventive alcoholism counseling services to a child shall at least:

(a) develop an initial assessment and evaluation to determine the extent of the preventive alcoholism counseling services needed;

(b) prepare a written service plan for the provision of preventive alcoholism counseling services based on individual assessments and evaluations;

(d) maintain a written record of the services provided which shall include periodic notes relating to the child's progress; and

(e) write a closing summary of the preventive alcoholism counseling services provided when it has been determined that such services are no longer needed or when the child is no longer receiving such services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.6 Provision of preventive alcoholism counseling services to a child with parental consent

Wherever possible and feasible, parental consent shall be sought prior to the provision of preventive alcoholism counseling services to a child. Such consent shall be requested only with the permission of the child. If such permission is granted and parental consent obtained, efforts should be made to elicit parental participation in the preventive alcoholism counseling services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.7 Provision of preventive alcoholism counseling services to a child without parental consent

(a) If a child refuses permission to contact parents to seek parental consent or if, in the opinion of a qualified professional, such contact would not be helpful and would be deleterious to the child, preventive alcoholism counseling services may be provided to the child without parental consent. However, during the course of the counseling, the qualified professional shall make attempts to obtain permission from the child to obtain parental consent for and parental involvement in the preventive alcoholism counseling services. The written record of the preventive alcoholism counseling services provided shall include a statement or statements relating to the reasons for the provision of preventive alcoholism counseling services without parental consent and of the attempts made to obtain such consent.

(b) Before a facility may provide preventive counseling services to a child without parental consent, the facility must obtain the written consent of the child to his or her evaluation and the receipt of preventive counseling services. Before requesting that the child sign such a consent, the child must be:

(1) advised of the purpose and nature of such preventive alcoholism counseling;

(2) told that he or she may withdraw the signed consent and cease participating in the preventive alcoholism counseling services at any time;

(3) told that the facility will make attempts to convince the child of the need for involvement of other household members in preventive alcoholism counseling services and the facility's preference for parental consent for the rendering of preventive alcoholism counseling services; and

(4) advised that a written record of his or her preventive alcoholism counseling services will be made and maintained by the facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.8 Fees for services

(a) Fees for preventive alcoholism counseling services provided to a child with parental consent may be billed to the parents.

(b) Fees for preventive alcoholism counseling services provided to a child without parental consent shall not be billed to the parents but may be billed to the child. Such fees shall be based on the child's ability to pay.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 305.9 Confidentiality

(a) In all cases where preventive alcoholism counseling services are provided to children, extra precautions shall be taken to protect confidentiality. Appropriate release of information forms shall be signed by a child for each disclosure made to another person or agency. Such release must have an expiration date no longer than 90 days after its execution and must comply with federal regulations concerning confidentiality of alcohol patient records (42 CFR part 2).

(b) If preventive counseling services are provided to a child without parental consent, only the child's written consent is necessary to disclose information, and the written consent of the parent may not be sought.

(c) If preventive counseling services are provided to a child with parental consent, the written consent of both the child and the parent must be acquired in order to disclose information. The child's consent must be sought first, and, if the child refuses to consent, parental consent shall not be sought.

(d) If HIV-related information is obtained during the course of providing preventive counseling services, such information shall be maintained and released only pursuant to the Federal confidentiality regulations, when applicable, and Part 309 of this Title.

Part 343 Alcohol Awareness Education Program For Youth

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.1 Background and intent

(a) The alcohol awareness program for Youth is an alternative sentence that may be imposed upon youth under 21 years of age found guilty of violating section 65-b (fraudulent use of identification to purchase alcohol) or 65-c (underage possession of alcohol) of the Alcoholic Beverage Control Law. Furthermore, this program can be used as an alternative condition of dismissal for a youth under 21 years of age who has been charged with a misdemeanor other than section 1192 of the Vehicle and Traffic Law (driving while intoxicated or with ability impaired), where the record indicates that the consumption of alcohol may have been a contributing factor in the commission of the offense.

(b) The alcohol awareness program for youth is a valuable sentencing alternative for youths who may be at high risk of developing serious problems with alcohol and who have gotten into trouble with the law because of alcohol. By providing such youth with information vital to their well-being while also requiring investment of enough of their time to serve as a deterrent to alcohol and other drug use, the alcohol awareness program for youth is an important weapon in the fight against youthful alcohol abuse.

(c) The purpose of this Part is to set forth the application process, evaluation criteria, and administration procedures for establishing and conducting the alcohol awareness program for youth.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.2 Legal base

Paragraph 6-a of section 19.07 of the Mental Hygiene Law authorizes the division to establish the alcohol awareness program for youth as a condition for persons who violate sections 65-b or 65-c of the Alcoholic Beverage Control Law, or as an alternative condition of adjournment in contemplation of dismissal for certain defendants pursuant to subdivision 7 of section 170.55 of the Criminal Procedure Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.3 Applicability

(a) This Part shall apply to any not-for-profit corporation, local government, school district, or department or part thereof which meets the requirements for providing an alcohol awareness program for youth under this Part, and which wishes to become a certified provider of such programs.

(b) A provider shall not operate a program called an alcoholism awareness program for youth nor shall it promote such a program to the courts as a program established pursuant to chapter 683 of the Laws of 1990 unless such provider has been approved and certified by the division.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.4 Definitions

Unless otherwise defined in this Part, the definitions in the Mental Hygiene Law and those contained in other parts of this Title shall apply. If there is a conflict between definitions contained in this Part with those in other regulations, the word or phrase defined in this Part shall control.

(a) Alcohol awareness program means a program approved by the division which meets the learning objectives established by the division to provide a positive educational experience to youth who have gotten into trouble with the law as a result of alcohol.

(b) Applicant means an entity which applies to the division to become a certified provider of an alcohol awareness program for youth.

(c) Certified provider means an entity which has applied for and has received the approval of the division to establish and provide an alcohol awareness program for youth.

(d) Director means the Director of the Division of Alcoholism and Alcohol Abuse.

(e) Division means the Division of Alcoholism and Alcohol Abuse.

(f) Prevention education program for youth means a series of activities designed to assist a youth to recognize and eliminate his or her use of alcohol and/or other mind altering substances.

(g) Program means the alcohol awareness program for youth.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.5 Provider and program eligibility requirements

In order to be approved as a certified provider of an alcohol awareness program for youth, an applicant must satisfy the following provider and program eligibility requirements:

(a) Provider eligibility. In order to apply for approval as a certified provider, an applicant must:

(1) be a not-for-profit corporation, a local government, a school district, or a department or part thereof;

(2) have at least three years of experience in delivering alcohol related prevention education programs for youth, as defined in section 343.4(f) of this Part.

(b) Program requirements. In order to be approved as an alcohol awareness program for youth, a program must:

(1) not exceed two hours per week over a period not to exceed eight weeks. Consideration may be given to appropriate programs of shorter duration at the discretion of the division;

(2) establish the number of participants in each program to be no fewer than five nor no greater than 15. Consideration may be given to programs where the number of participants is slightly less than five or greater than 15 upon a satisfactory showing by the applicant that:

(i) there is a need for such program size; and

(ii) there are no other available alternatives, such as merging or dividing classes.

(3) be scheduled to ensure that they are offered in a timely manner to meet the needs of the courts;

(4) serve either a 12-16 year old population or a 16-20 year old population. Separate applications for each age group are required for applicants who wish to provide programs for both groups;

(5) follow the division approved curriculum;

(6) require all participants to comply with the following before a division-approved certificate of completion shall be issued to such participant;

(i) take a pre- and post-knowledge and attitude survey developed by the division;

(ii) attend all scheduled classes; and

(iii) pay and/or satisfy the requisite program participation fee, based on a division approved agreement between the applicant and the participating courts;

(7) be designed to be funded principally by user fees and/or through grants and assistance from any municipality or department or part thereof, or from other not-for-profit corporations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.6 Application process

(a) Forms. Application for approval as a certified provider of an alcohol awareness program for youth shall be on forms provided by the division.

(b) Notice of requirements. Applications must conform to the procedure and specifications set forth in the notice of requirements provided by the Division.

(d) Requisite information. Applications shall include, but shall not be limited to, the following:

(1) background of the applicant, including a brief description of the applicant itself and its experience in providing alcohol-related prevention education for youth services;

(2) description of the target population and geographical area to be served;

(3) a letter of endorsement of both the program and the program provider from the local community services board;

(4) proof and descriptions of arrangements with local magistrates and/or judges;

(5) a statement specifying the age group to be served by theapplicant in accordance with section 343.5 of this Part;

(6) a statement outlining the qualifications of each program instructor;

(7) a description of the physical facilities where the program will be offered;

(8) a schedule of the days and hours of proposed program offerings;

(9) a description of the proposed program which indicates how it addresses requisite learning objectives as determined by the director in each of the following categories:

(i) laws and the criminal justice system;

(ii) characteristics of alcohol;

(iii) understanding alcoholism/addiction;

(iv) family dynamics and issues regarding children of alcoholics;

(v) societal issues;

(vi) youth issues;

(vii) choices and alternatives;

(viii) self assessment; and

(ix) community resources;

(10) a budget statement which describes costs and revenues for an eight week program, including proposed fees and a provision for fee reductions that may be mandated by the courts; and

(11) such other information as the division designates.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.7 Evaluation process

(a) Review of applications. The division shall review applications in accordance with the evaluation criteria specified in section 343.8 of this Part.

(b) Approval. Approval of an application may be conditioned upon the applicant's compliance with specified requirements within a particular time period as communicated in a notification letter from the director.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.8 Evaluation criteria

The following are relevant to the division when determining whether or not to approve an applicant as a certified provider of an alcohol awareness program for youth:

(a) Eligibility qualifications. The division shall consider whether the applicant meets eligibility qualifications in accordance with section 343.5 of this Part;

(b) Required endorsements. The division shall consider:

(1) the endorsement of both the program and the program provider by the local community service board; and

(2) the endorsement of the program by the local judge(s) or magistrate(s).

(c) Learning objectives. The division shall consider the extent to which the program meets the learning objectives of section 343.6 of this Part as detailed in the notice of requirements;

(d) Target audience. The division shall consider the appropriateness of the program for the intended audience.

(e) Budget. The division shall consider the capability of the applicant to provide the program within the submitted budget.

(f) Fees. The division shall consider the appropriateness and adequacy of the proposed fee and provision for fee reductions.

(g) Qualifications of staff. The division shall consider the appropriateness and adequacy of each staff member's qualifications, and the availability of qualified staff.

(h) Such other criteria as the division designates.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.9 Notification of determination and required affirmation

(a) Notified in writing. If the director determines that the requirements of sections 343.5, 343.6, 343.7 and 343.8 of this Part have been satisfied, the applicant will be notified in writing that it has been conditionally approved as a certified provider of an alcohol awareness program for youth, pending receipt of a properly signed affirmation statement in accordance with subdivision (b) of this section.

(b) Required affirmation. Such notice shall include a statement of affirmation that must be signed by the applicant and returned to the division.

(1) The affirmation shall state that in addition to the requirements of this Part, the program provider agrees to the following:

(i) to submit resumes of all new instructors to the division at least two weeks before such instructors commence instruction;

(ii) to administer evaluations on forms provided by the division to program participants for completion, and to mail all completed evaluations to the division within seven days of such completion;

(iii) to grant the division access to the program so that classes can be monitored at any time;

(iv) to furnish the division with a schedule of all classes, indicating the locations, times, and dates of such classes;

(v) to adhere to all standards set forth in this notice of requirements in accordance with section 343.6(b) of this Part; and

(vi) to make a good faith effort to ensure that learning objectives, as set forth in the notice of requirements in accordance with section 343.6(b) of this Part, are achieved.

(2) The affirmation shall also state that the program provider acknowledges the following:

(i) that the division may change requirements for the program at any time, upon notice to the program provider, and may require that such changes be incorporated into the program in a timely fashion; and

(ii) that contents of the provider's curriculum may be shared with the division, with other certified providers of an alcohol awareness program for youth, or with applicants for such certification.

(c) Certificate. Upon receipt of a properly signed affirmation statement, the director shall forward a certificate to the approved certified provider of an alcohol awareness program for youth.

(d) Explanation of disapproval. If the determination of the director is not to approve an applicant as a certified provider of an alcohol awareness program for youth, the applicant will be notified in writing of the reason(s) therefor.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.10 Reporting

(a) Required reports. Certified providers must prepare and provide the division with statistical, financial, pre and post test format and/or results, and evaluative reports at such times as requested and on forms provided by the division.

(b) Failure to report. Failure to submit such reports may result in termination of certification in accordance with section 343.15 of this Part or denial of renewal of certification in accordance with section 343.14 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.11 Administrative fees

(a) Ten percent of fees required. All certified providers must remit to the division at the end of each eight week program 10 percent of all fees collected from program participants to help defray the cost to the division of administering the program.

(b) Failure to remit. Failure to remit such payments may result in termination of certification in accordance with section 343.15 of this Part or denial of renewal of certification in accordance with section 343.14 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.12 On-site inspections

(a) Right to inspect. The division shall have the right to conduct on-site inspections to evaluate the certified provider's performance in delivering the program in accordance with its application and this Part.

(b) Barring access. Refusal to provide the division with access for the purpose of such inspection may result in termination of certification in accordance with section 343.15 of this Part of denial of renewal of certification in accordance with section 343.14 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.13 Confidentiality

(a) Confidential treatment of information required. The certified provider shall treat as confidential all information regarding a youth's participation in the program with the exception of information required by the courts and/or the division.

(b) Policies and procedures. The certified provider shall provide each participating youth with a written explanation of the types of information that will be provided to the referring court and the circumstances under which such information will be provided.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.14 Certification registry and renewal

(a) Registry. The division shall maintain a current registry of all certified providers of alcohol awareness programs for youth.

(b) Certification renewals. Certification renewal shall be required every two years and in accordance with the following procedure:

(1) At least 120 days prior to the expiration, the division shall notify the certified provider of such expiration date of such notice shall include an application for the certification renewal.

(2) At least 60 days prior to the expiration date of the certification, the completed certification renewal form shall be submitted as directed to the division.

(1) The renewal application shall be reviewed by the division within 30 days of receipt. All information submitted in the application shall be subject to verification and approval by the division.

(2) After review of the renewal application, the division shall renew certification, place a certified provider on probationary status, or deny renewal in accordance with this section.

(d) Grant of renewal. If the division determines that certification should be renewed, the certified provider shall be notified in writing by regular mail.

(f) Denial of renewal.

(1) Renewal may be denied if it is determined that:

(i) user fees have been lost, misapplied, diverted or expended for purposes other than those for which they were paid;

(ii) the certified provider receives a direct or indirect benefit from making or directing that a referral be made to any particular resource;

(iii) the certified provider knows that a program staff member has received or is receiving an inappropriate direct or indirect benefit from making or directing that a referral be made to any particular resource and the certified provider does not correct the problem;

(iv) confidentiality measures pursuant to section 343.13 of this Part have not been established or followed;

(v) a plan to correct deficiencies has not been satisfactorily implemented;

(2) If a program has been denied renewal, it shall be notified by registered mail, return receipt requested. Such notification shall state that certification shall be invalid on the date of expiration.

(f) Conferral of probationary status.

(1) The division may place a certified provider on probationary status upon determination of any of the following:

(i) a program is not being implemented as outlined in its application or as otherwise approved by the division;

(ii) a program does not comply with relevant state statutes or regulations;

(iii) reports have not been submitted in a timely fashion;

(iv) payment of administrative fees in accordance with section 343.11 of this Part has not been made to the division in a timely fashion;

(v) unapproved and/or unqualified instructors are being used for the program;

(vi) the local community services board has withdrawn its approval;

(vii) the program is not working in cooperation with local courts; and/or

(viii) the division has been denied access to the program for on site inspections.

(2) If a certified provider is placed on probationary status, it shall be notified by certified mail, return receipt requested. Such notification shall state that such provider shall submit a plan of correction within 30 days of receipt of the notification and in accordance with division instructions.

(3) After receipt of the required plan of correction from the certified provider, the division shall conduct a follow-up on-site inspection of such provider, or shall take other appropriate measures to review plan compliance.

(i) If the division determines that the plan of correction has been satisfactorily implemented and deficiencies no longer exist, certification shall be renewed.

(ii) If the division determines that the plan of correction has not been satisfactorily implemented and/or deficiencies persist, certification renewal shall be denied.

(d) Failure to apply for renewal. If a certified provider fails to apply for certification renewal within the 60 days prior to the expiration date of certification, such provider shall be sent a written notice by the division stating that certification will be invalid on the date of expiration.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.15 Termination of certification

(a) Grounds.

(1) The division shall terminate certification prior to expiration upon discovery of any of the circumstances set forth in section 343.14(e)(1)(i) through (v) of this Part.

(2) The division may terminate certification prior to expiration upon discovery of any of the circumstances set forth in section 343.14(f)(1)(i) through (viii) of this Part or if any of the terms of the affirmation statement signed pursuant to section 343.9 have been violated, in accordance with the following procedure:

(i) The division shall inform the certified provider in writing of the inappropriate activity or deficiency and shall notify such provider that it has been placed on probationary status and that it must immediately cease and desist all inappropriate activity or correct noted deficiencies, as applicable. Such notification shall also state that the certified provider must submit a plan of correction within 30 days of receipt of the notification and in accordance with division instructions.

(ii) After receipt of the required plan of correction, the division shall conduct a follow-up on-site inspection of such provider, or shall take other appropriate measures to determine plan compliance.

(iii) If the division determines that the plan of correction has been satisfactorily implemented, and deficiencies no longer exist, probationary status shall be lifted and full certification shall be restored.

(iv) If the plan of correction has not been satisfactorily implemented and/or if deficiencies persist, certification shall be terminated. The division shall send written notice of termination of certification to the provider by certified mail, return receipt requested. Such notice shall state that certification shall be invalid upon receipt of the notice.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 343.16 Waiver

(a) When granted. The director may grant a waiver of a requirement not specifically required by law if the director determines that:

(1) meeting the requirement would impose an unreasonable hardship;

(2) the health and safety of youth who participate in an alcohol awareness program would not be diminished; and

(3) the best interests of the individuals who participate in an alcohol awareness program and the certified provider would be served.

(b) Considerations for waiver. In considering a request for a waiver, the director will consider such factors as special needs of the populations to be served, geographic distances and transportation problems, staff availability, long range plans of the certified provider, alternatives, and any other relevant information.

(c) Submission of request. A request for a waiver must be submitted in writing, must contain substantial documentation to support the need for the waiver and must include such other information as the director may require.

(d) Limits or conditions. Special limits or conditions may be established by the director in granting a waiver.

(e) Duration of waiver. A waiver shall be in effect for no longer than the duration of a valid certification.

Chapter XIII Office of Mental Health

Part 501 Mental Health Services-general Provisions

N.Y. Comp. Codes R. & Regs. Tit. 14 § 501.1 Legal base

(a) Section 7.09 of the Mental Hygiene Law gives 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 or her jurisdiction.

(b) 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.

(c) Section 31.04 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to adopt regulations to effectuate the provisions and purposes of article 31 of such law, including procedures for the issuance and amendment of operating certificates, and for setting standards of quality and adequacy of facilities.

History

Amended, New York State Register, Volume XXXVI, Issue 29, effective 7/23/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 501.3 Waiver

(a) Waiver.

(1) The commissioner shall have the authority to waive regulatory requirements within Chapter XIII of this Title, which are not otherwise required by State or Federal law.

(2) The commissioner may grant a waiver of a regulatory requirement requested pursuant to this section if he/she determines that:

(i) the rights, health and safety of clients would not be diminished;

(ii) the best interests of clients would be served;

(iii) the benefits of waiving the requirement outweigh the public interest in meeting the requirement; and

(iv) the purpose of the request is to implement/test innovative programs that may increase the efficiency or effectiveness of operations, to provide additional flexibility to better meet local service needs while maintaining program quality and integrity, or other purposes deemed appropriate by the commissioner.

(3) The granting of waivers will be at the sole discretion of the commissioner.

(4) A request for a waiver must be submitted in writing, must clearly cite the regulatory requirements at issue, must provide sufficient evidence of prior consultation with the appropriate local governmental unit or units, must contain substantial documentation to support the need for the waiver, including documentation which demonstrates that it is consistent with the provisions of paragraph (2) of this subdivision, and must include such other information as the commissioner may require.

(5) Special limits, conditions or restrictions may be established by the commissioner in granting a waiver.

(6) Waivers issued under this section shall be in effect for no longer than three years. In the case of a waiver granted to a provider of services for who an operating certificate has been issued pursuant to article 31 of the Mental Hygiene Law, such waiver shall be in effect no longer than the duration of the operating certificate held by the facility for which such waiver is granted. Waivers shall not be renewed unless the entity to whom the waiver has been issued submits a request for renewal to the commissioner, provides such other information as the commissioner may require, and documents to the satisfaction of the commissioner that there has been consultation with the appropriate local governmental unit or units and that such renewal is consistent with the provisions of paragraph 2 of this subdivision.

(7) The office shall provide public notice of applications for waivers by posting such information on its internet site. The office shall review and consider any public comments which are received regarding the application for a waiver. The office shall supplement its internet posting with the commissioner's determination with respect to each application, when such determination is made.

(b) Nothing in this section shall be deemed to limit the ability of the commissioner to waive regulations, to the extent permitted by law, in extreme emergencies, such as natural disasters, acts of terrorism, or as directed by the Governor.

(c) Nothing in this section shall be deemed to alter the commissioner's authority to waive regulatory requirements in accordance with specific authority established in other Parts of Chapter XIII of this Title.

History

Amended, New York State Register, Volume XXXVI, Issue 29, effective 7/23/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 501.4 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without the invalid provision or application, and to this end the provisions of this Part are declared to be serverable.

History

Amended, New York State Register, Volume XXXVI, Issue 29, effective 7/23/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 501.5 Obsolete or Outdated references

(a) Commission on Quality of Care and Advocacy for Persons with Disabilities: Effective June 30, 2013, all references to the Commission on Quality of Care and Advocacy for Persons with Disabilities that appear in this Title, as applicable to the Office of Mental Health and facilities under its jurisdiction, shall be deemed to be references to the Justice Center for the Protection of People with Special Needs, established pursuant to Chapter 501 of the Laws of 2012.

(b) Diagnostic manuals. All references in this Title, as applicable to the Office of Mental Health and facilities under its jurisdiction, to the International Classification of Diseases Manual (ICD) that refer to a specific edition shall be deemed to reference the most current version required to be used for coding by the centers for Medicare and Medicaid Services. All references in this Title, as applicable to the Office of Mental Health and facilities under its jurisdiction, to the Diagnostic and Statistical Manual of Mental Disorders (DSM) that refer to a specific edition shall be deemed to reference the most recent published edition of such manual.

History

Amended, New York State Register, Volume XXXVI, Issue 29, effective 7/23/2014

Part 502 Availability Of And Access To Materials Incorporated By Reference In Title 14 Nycrr Applicable To Services, Programs And Facilities Certified And/or Operated By The Office Of Mental Health

N.Y. Comp. Codes R. & Regs. Tit. 14 § 502.1 Background, intent and legal base

(a) Mentally disabled individuals are provided care and treatment through a variety of multifaceted programs, services and facilities which are certified, operated and/or supervised by the New York State Office of Mental Health (OMH).

(b) Certain standards have been established by OMH which govern the certification, organization and administration of such programs, services and facilities.

(c) The Executive Law, section 102, requires that any code, rule or regulation which incorporates by reference any Federal statute, code, rule or regulation previously published in the Code of Federal Regulations or Federal Register, or any previously published data, criteria, standards, specifications, techniques, illustrations or other information, shall set forth in the text thereof precise identification of such materials.

(d) These regulations are intended to provide the public with specific identification of materials incorporated by reference in regulations set forth in Title 14 NYCRR applicable to services, programs and facilities which are certified, operated and/or supervised by OMH.

(e) Section 7.09 of the Mental Hygiene Law grants the Commissioner of Mental Health the authority to adopt regulations that are necessary and proper to implement any matter under his or her jurisdiction.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 502.2 Publications incorporated by reference

| Publication | Title 14 NYCRR reference | | --- | --- | | (a) Section 1122, title XI of the Social Security Act; 42 USCA 1820 a""1, 1982 edition, pages 141""161. | | | Published by and available from: | | | West Publishing Co. 50 West Kellogg Blvd. St. Paul, MN 55165 | Section 51.7(g) | | (b) Title XVIII of the Social Security Act; 42 USCA 1395, 1982 edition, pages 355""725. | | | Published by and available from: | | | West Publishing Co. 50 West Kellogg Blvd. St. Paul, MN 55165 | Section 577.4(e); | | 578.4(e) | | | (c) Title XIX of the Social Security Act; 42 USCA 1396, 1982 edition, pages 726""931. | | | Published by and available from: | | | West Publishing Co. 50 West Kellogg Blvd. St. Paul, MN 55165 | Sections 574.1(b); | | 574.4(c); | | | 574.5(a)(2); | | | 576.1(b); | | | 576.4(b); | | | 576.5(a)(2); | | | 578.1(b); | | | 579.1(c). | | | (d) Regulations promulgated or adopted by the United States Department of Health and Human Services, Code of Federal Regulations, 42 CFR 401.101""489.57, pages 1""1025, revised as of October 1, 1983. | | | Published by: Office of the Federal Register, National Archives and Records Service, General Services Administration. Available from: | | | Superintendent of Documents U.S. Government Printing Office Washington, DC 20402 | Sections 574.1(b); | | 574.4(c); | | | 574.5(a)(2); | | | 576.1(b); | | | 576.4(b); | | | 576.5(a)(2); | | | 577.4(e); | | | 578.1(b); | | | 578.4(e); | | | 579.1(c). | |

N.Y. Comp. Codes R. & Regs. Tit. 14 § 502.3 Availability and accessibility of materials

Materials cited in this Part are available for inspection and copying at the following locations at the Office of Mental Health:

(a) New York State Office of Mental Health, Records Access Office, Counsel's Office, 44 Holland Avenue, Albany, NY 12229, telephone (518) 474-1331; Monday through Friday, 9 a.m.-5 p.m.

(b) New York State Office of Mental Health, Library, Counsel's Office, 44 Holland Avenue, Albany, NY 12229, telephone (518) 474-1331; Monday, 9 a.m.-3:30 p.m.; Tuesday through Friday, 9:30-11:30 a.m.

Part 503 Adjudicatory Proceedings

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.1 Background and intent

The purpose of this Part is to set forth uniform procedures for the conduct of adjudicatory proceedings, as defined in section 102 of the State Administrative Procedure Act, within the Office of Mental Health. Such procedures are intended to assure that all adjudicatory proceedings are impartial, efficient, timely, expert and fair.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.2 Legal base

(a) Section 7.09 of the Mental Hygiene Law grants 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 jurisdiction and set standards of quality of care.

(b) Section 31.05 of the Mental Hygiene Law grants the commissioner of the Office of Mental Health the authority to disapprove an application for an operating certificate. In such cases, this section further requires the commissioner to afford the applicant an opportunity to be heard.

(c) Section 31.16 of the Mental Hygiene Law grants the commissioner of the Office of Mental Health the authority to suspend, revoke or limit an operating certificate, or impose fines. Such section further requires the commissioner to provide the holder of the operating certificate with a notice of such action and an opportunity to be heard. In such cases, this section also empowers the commissioner to establish regulations to govern the hearing procedure and the process of determination of the proceeding.

(d) Section 31.17 of the Mental Hygiene Law grants the commissioner of the Office of Mental Health the authority to establish regulations to govern hearings afforded pursuant to article 31 of the Mental Hygiene Law.

(e) Section 31.19 of the Mental Hygiene Law grants the commissioner of the Office of Mental Health the authority to issue a cease and desist order upon a finding that violations of article 31 of the Mental Hygiene Law have occurred. In such cases, this section further requires the commissioner to provide the person accused of the violation with a notice of the proposed action and an opportunity to be heard.

(f) Section 31.16 (b) of the Mental Hygiene Law grants the commissioner of the Office of Mental Health the authority to temporarily suspend or limit an operating certificate. In such cases, this section further requires the commissioner to provide the holder of the operating certificate an opportunity for an evidentiary hearing to contest the validity of the emergency suspension or limitation.

(g) Section 31.22 of the Mental Hygiene Law grants the commissioner of the Office of Mental Health the authority to disapprove an application for certain certificates of incorporation. In such cases, this section further requires the commissioner to afford the applicant an opportunity to be heard.

(h) Section 31.23 of the Mental Hygiene Law grants the commissioner of the Office of Mental Health the authority to disapprove an application for construction of a facility. In such cases, this section further requires the commissioner to afford the applicant an opportunity to be heard.

(i) Section 43.02 of the Mental Hygiene Law provides that payments under the Medical Assistance Program for services at facilities licensed by the Office of Mental Health, other than inpatient units which are jointly licensed by the Department of Health, shall be at rates of payment certified by the commissioner of the Office of Mental Health and approved by the Director of the Budget. This section also empowers the commissioner to conduct on-site audits of the books and records of facilities licensed by the Office of Mental Health, and to adopt rules and regulations to effectuate the provisions of section 43.02.

(j) Article 3 of the State Administrative Procedure Act establishes procedures for the conduct of adjudicatory proceedings and requires agencies to adopt rules governing such proceedings.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.3 Applicability

(a) This Part shall apply to the following adjudicatory proceedings brought by or before the Office of Mental Health pursuant to the Mental Hygiene Law and/or regulations issued pursuant thereto:

(1) hearings, afforded an applicant, on the disapproval of an application for construction of a facility pursuant to Mental Hygiene Law, section 31.23 and Parts 53 and 551 of this Title;

(2) hearings on the denial of application for or limitation of initial operating certificate pursuant to Mental Hygiene Law, section 31.05;

(3) hearings on the suspension, revocation or limitation of an operating certificate, or the imposition of fines pursuant to Mental Hygiene Law, section 31.16;

(4) hearings on the emergency suspension or limitation of an operating certificate pursuant to Mental Hygiene Law, section 31.16;

(5) hearings on the issuance of a cease and desist order pursuant to Mental Hygiene Law, section 31.19;

(6) hearings, afforded an applicant, on the disapproval of an application for certificate of incorporation pursuant to Mental Hygiene Law, section 31.22 and Part 551 of this Title;

(7) hearings held pursuant to any law or regulation giving a facility licensed by the Office of Mental Health the right to request a hearing to appeal a determination by the commissioner regarding the facility's request for revision of a certified rate of payment; and

(8) hearings held pursuant to any law or regulation giving a facility licensed by the Office of Mental Health the right to request a hearing to appeal an agency audit finding which results in a proposed revision of a certified rate of payment.

(b) This Part supersedes Part 73 as it relates to services for the mentally ill.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.4 General hearing procedures

This section applies to the conduct of hearings described in section 503.3 of this Part unless a conflict exists between the provisions of this section and those of sections 503.5 -503.9 of this Part, in which case the provisions of those sections shall be controlling.

(a) Notice of intent.

(1) The commissioner or his or her designee shall issue a notice of the Office of Mental Health's decision to take action, which shall include:

(i) notice of the proposed action and a general description of the reasons therefor; and

(ii) notice of the right to be heard and the opportunity to request a hearing on the matter.

(2) The proposed action shall become effective 10 days after service of the notice unless, within that time period, the party files with the commissioner a written request for a hearing.

(b) Order and notice of hearing.

(1) Within 30 days of receipt of a request for a hearing, the commissioner shall order an administrative hearing to be held before the commissioner or his or her designated hearing officer.

(2) A written notice of hearing shall be issued which includes:

(i) a statement of the date, time and place of the hearing;

(ii) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(iii) a reference to the particular sections of the statutes and regulations involved, if any;

(iv) a short and plain statement of matters asserted; and

(v) a statement that interpreter services shall be made available, at no charge, to non-English speaking persons or persons with hearing impairments.

(3) Notice of hearing shall be served in person or mailed by registered or certified mail, at least 10 days prior to the hearing date, to the person or facility to be notified at the last known address.

(c) Adjournment. All parties should be prepared to proceed at the time and date scheduled. Except for good cause shown, requests for adjournments shall be in writing and shall be filed with the hearing officer at least three days prior to the commencement of the hearing. Except as provided in section 31.16 (b)(4) of the Mental Hygiene Law, requests for adjournments shall be granted at the discretion of the hearing officer, who shall notify all parties of the new time and date.

(d) Answer or responsive pleading.

(1) An answer or responsive pleading to the matters asserted in the notice of hearing must be filed where required by law or may be filed at the discretion of a party, but in either case not less than three days prior to the hearing. Any such answer or responsive pleading shall be signed by the party or the party's attorney and shall specify which allegations are admitted, which allegations are denied and which allegations a party has insufficient information upon which to form a belief.

(2) The hearing officer may require a party to submit an answer or responsive pleading.

(e) Service and filing of papers.

(1) Service of all papers shall be made on all parties, or if a party is represented by an attorney, upon the party's attorney, and a copy filed with the commissioner or the hearing officer, as the case may be.

(2) Except as otherwise provided in this Part, service of papers may be made in any of the following ways:

(i) by personal delivery to the party or his or her attorney or a person of suitable age and discretion at the attorney's office;

(ii) by mailing, postage prepaid, to the address last designated by the party or his or her attorney for the receipt of papers or, if no address is designated, at the recipient's last known address;

(iii) by overnight delivery service to the address last designated by the party or his or her attorney for the receipt of papers or, if no address is designated, at the recipient's last known address; or

(iv) by electronic transmission to the telephone number or other station designated by the party or his or her attorney for that purpose, where the party or his or her attorney has consented to the receipt of papers by electronic transmission. Unless a party provides written notice to the contrary, a party will be deemed to have consented to accepting service by electronic transmission where a telephone number for such transmission appears on letterhead used by the party in correspondence with the Office of Mental Health.

(3) Service of papers by mail shall be complete upon mailing. If these regulations calculate a party's time to respond from the date of service and service is by mail, the responding party shall have five additional days to respond.

(4) Service of papers by overnight delivery shall be complete upon depositing the papers, properly wrapped, with or in an official depository of the overnight carrier prior to the last designated time for such deposit which will permit next day delivery. If these regulations calculate a party's time to respond from the date of service and service is by overnight delivery, the party shall have one additional business day to respond.

(5) Service of papers by electronic transmission shall be complete upon receipt by the sender of a signal from the recipient's equipment that the transmission has been received and the mailing of a copy of the papers, postage prepaid, to the address last designated by the recipient for the receipt of papers or, if no address is designated, at the recipient's last known address.

(6) Service upon the commissioner or the Office of Mental Health shall be made by serving the Office of Mental Health Counsel, New York State Office of Mental Health, 44 Holland Avenue, Albany, NY 12229.

(7) Filing may be accomplished by service upon the commissioner, as described above, or upon the hearing officer, as the case may be. However, for the purpose of complying with any time limit imposed by this Part, filing shall be complete only upon actual receipt by the commissioner or the hearing officer.

(f) Discovery. There shall be no discovery, except as agreed upon by all parties or otherwise provided by this Part.

(g) Hearing officer.

(1) The hearing officer shall conduct the hearing in a fair and impartial manner.

(2) Unless otherwise authorized by law, a hearing officer shall not communicate, directly or indirectly, in connection with any issue that relates in any way to the merits of an adjudicatory proceeding pending before the hearing officer with any person except upon notice and opportunity for all parties to participate.

(3) The hearing officer shall have the power to:

(i) rule upon applications and requests, including requests for adjournments;

(ii) set dates, times and places of hearings;

(iii) administer oaths and affirmations;

(iv) issue subpoenas, which shall be regulated by the Civil Practice Law and Rules, requiring the attendance and testimony of witnesses and the production of books, records, contracts papers and other evidence;

(v) examine witnesses;

(vi) admit and exclude evidence;

(vii) limit the number of times any witness may testify, repetitious examination or cross-examination, and the amount of corroborative or cumulative testimony;

(viii) request and/or hear oral arguments;

(ix) request written arguments;

(x) order the parties to appear for a prehearing conference to consider matters which may simplify the issues or expedite the proceedings; and

(xi) do all acts and take all measures necessary for the maintenance of order and the efficient conduct of the hearing.

(4) No hearing officer shall preside who has any interest in or bias with respect to the matter involved in the proceeding.

(i) If a party has a good faith basis to believe that a hearing officer cannot render a fair and impartial decision in a particular case, such party may request that the hearing officer recuse himself or herself. Such request must be made in writing and must articulate the specific grounds on which the party claims interest or bias.

(ii) Upon receipt of a request for recusal, the hearing officer shall expeditiously determine whether or not to recuse himself or herself. If the hearing officer determines not to recuse himself or herself, he or she shall issue a written decision stating the reasons therefor and shall serve a copy of the decision on all parties.

(iii) Upon written application of any party filed within five days of service of the hearing officer's determination, such a termination shall be subject to review by the commissioner. The commissioner or his or her designee shall review the matter as soon as practicable and shall issue a written determination, which shall be made part of the record.

(5) Upon being notified that a hearing officer declines or fails to serve, or if it becomes impractical for the hearing officer to continue the hearing, or in the case of death, resignation or removal of the hearing officer, a successor hearing officer shall be designated by the commissioner to continue the proceeding, unless it is shown that substantial prejudice to the parties will result therefrom.

(6) The designation of a hearing officer shall be in writing and made a part of the record.

(h) The hearing.

(1) Appearances.

(i) A party may appear in person or by an attorney. If a party appears by an attorney, service of papers shall be made upon the attorney.

(ii) In the event a party or its representative does not appear at a scheduled hearing without prior notice of an inability to appear, the hearing officer may recommend to the commissioner a default decision against that party.

(2) Consolidation and severance.

(i) In proceedings which involve common questions of fact, the hearing officer, upon his or her own motion, or upon the motion of any party, may order a consolidation of actions or a joint hearing of any or all issues to avoid unnecessary delay and cost.

(ii) The hearing officer may order a severance of the hearing and hear separately any issue in the proceeding to avoid prejudice or inconvenience.

(3) Conduct of hearing and evidence.

(i) The hearing officer shall not be bound by technical or formal rules of procedure or common law or statutory rules of evidence, except that the rules of privilege recognized, by law shall be respected. The determination of privilege shall be founded upon sufficient legal evidence. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, where appropriate, a hearing officer may, for the purpose of expediting hearings, and when the interests of parties will not be substantially prejudiced thereby, accept the submission of all or part of the evidence in written form.

(ii) Each witness shall be sworn or shall give an affirmation.

(iii) Each party shall have the right to present evidence and be afforded an opportunity to require the production of witnesses and evidence in manner and form as prescribed by the Civil Practice Law and Rules, to cross-examine witnesses, to examine evidence produced against them, and to have subpoenas issued on their behalf.

(iv) Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the Office of Mental Health.

(v) If evidence at a hearing relates to the identity, condition or clinical record of a patient, the hearing officer may exclude all persons from the room except parties to the proceeding, their counsel, and the witnesses. The record of this proceeding shall not be available to anyone outside the Office of Mental Health, other than a party to the proceedings or his or her counsel, except by order of a court of record.

(vi) All parties shall have the right to make oral arguments before a hearing officer, which shall be included in the record of the hearing. Such oral argument may be curtailed at the discretion of the hearing officer, provided that a party shall be given the opportunity to submit his or her argument in writing.

(vii) Memoranda of law may be required by the hearing officer, or may be submitted by any party. The hearing officer will fix the time within which memoranda of law may be filed. Memoranda of law received subsequent to the time specified need not be considered.

(4) Record.

(i) A verbatim recording shall be made of the proceedings.

(ii) A transcription of the record shall be made available to any party upon request and payment of the cost of the transcription.

(i) Hearing officer's report.

(1) Unless otherwise agreed to by all parties, the hearing officer shall be set forth his or her findings and recommendations for action by written report to the commissioner within 30 days of receipt of the entire transcript of the hearing. The hearing officer shall serve a copy of the report on all parties.

(2) The record of the hearing and the hearing officer's report, shall be transmitted to the commissioner for final determination and order.

(j) Final determination.

(1) Within 10 days of the receipt of the record of the hearing, the commissioner shall make a final determination.

(2) The commissioner's determination shall be in writing. In the event that the final determination includes findings of fact or conclusions of law that conflict with the findings, conclusions or recommended decision of the hearing officer, the reasons therefor shall be set forth in writing.

(3) Copies of the commissioner's final determination shall be served upon all parties to the proceeding. At least one such copy shall be maintained on file in the Office of Mental Health.

(k) Waiver of rules. Except as otherwise provided by law, any of the rules in this Part may be waived by agreement of the parties or, if a hearing has convened, by agreement of the parties with the consent of the hearing officer.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.5 Hearing procedures: suspension, revocation or limitation of an operating certificate, or imposition of fines

(a) This section shall apply to hearings held pursuant to Mental Hygiene Law, section 31.16(a). Where a conflict exists between this section and any other section of this Part, the provisions of this section shall be controlling.

(b) Except as provided for in Mental Hygiene Law, section 31.16(b), if the holder of an operating certificate makes a timely and sufficient request for a hearing, the execution of any proposed action to revoke, suspend, limit or fine shall be stayed pending the commissioner's determination.

(c) Where the proposed action is the revocation of an operating certificate, either party shall, upon demand and at least seven days prior to the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and identification of witnesses. If the party making the disclosure subsequently determines to rely upon other witnesses or information, the party shall supplement its initial disclosure as soon as practicable. This section shall not be deemed to require the disclosure of information or materials which are otherwise protected by law from disclosure, including information and material protected because of privilege or confidentiality. If, after such disclosure, a party determines to rely upon other witnesses or information, the party shall, as soon as practicable, supplement its disclosure by providing the names of such witnesses or the additional documents.

(d) The commissioner's final determination shall be based upon a preponderance of the evidence and shall contain conclusions concerning the alleged violations of the terms of the operating certificate or the alleged violation of any applicable statute, rule or regulation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.6 Hearing procedures: temporary suspension or limitation of an operating certificate

(a) This section shall apply to hearings held pursuant to Mental Hygiene Law, section 31.16(b). Where a conflict exists between this section and any other section of this Part, the provisions of this section shall be controlling.

(b) Where the Office of Mental Health has temporarily suspended or limited an operating certificate pursuant to Mental Hygiene Law, section 31.16(b) (1), the facility operator, within 10 days of the date when the emergency suspension or limitation is first imposed or within 10 days of the date of receipt of notice from the commissioner to permanently revoke, suspend or limit the facility's operating certificate, may request an evidentiary hearing to contest the validity of the emergency suspension or limitation.

(c) The evidentiary hearing shall commence within 10 days of the filing of the facility operator's request. The notice of hearing shall be served upon the facility operator not less than 24 hours prior to the commencement of the hearing. Such service may be made in any manner permitted herein sufficient to provide the requisite 24-hour notice. The facility operator may serve an answer upon the Office of Mental Health at any time prior to the commencement of the hearing. No request for an adjournment shall be granted without the concurrence of the facility operator, Office of Mental Health and the hearing officer.

(d) The evidentiary hearing shall be limited to a determination of whether a patient's health or safety is in imminent danger or there exists any condition or practice or a continuing pattern of conditions or practices which poses imminent danger to the health or safety of any patient. The emergency suspension or limitation shall be upheld upon a determination that the Office of Mental Health had reasonable cause to believe that a patient's health or safety was in imminent danger.

(e) A record of the evidentiary hearing shall be made available to the facility operator upon request.

(f) Unless otherwise agreed to by all parties, the hearing officer shall set forth his or her findings and recommendations for action by written report to the commissioner within 10 days of receipt of the entire transcript of the hearing. The record of the hearing, together with the hearing officer's report, shall be transmitted forthwith to the commissioner for final determination and order. The hearing officer shall also serve a copy of the report on all parties.

(g) The commissioner shall issue a ruling within 10 days after the receipt of the hearing officer's report. Submission of any responses or replies need not be considered.

(h) If the commissioner determines to permanently revoke, suspend or limit the facility's operating certificate, no administrative hearing on that action shall commence prior to the commissioner's determination concerning the emergency suspension or limitation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.7 Hearing procedures: issuance of a cease and desist order

(a) This section shall apply to hearings held pursuant to Mental Hygiene Law, section 31.19. W here a conflict exists between this section and any other section of this Part, the provisions of this section shall be controlling.

(b) The decision to issue a cease and desist order pursuant to the Mental Hygiene Law, section 31.19 shall be final, unless the person charged with the violation files a written request for a hearing within 48 hours of service of notice of the proposed action.

(c) If the person charged with a violation makes a timely and sufficient request for a hearing, the execution of any proposed action to issue a cease and desist order shall be stayed pending the commissioner's final determination. Nothing in this section shall prevent the commissioner from taking whatever action he deems necessary for the suspension, revocation or limitation of the operating certificate of a facility operator who has been charged with a violation of Mental Hygiene Law, section 31.19, including but not limited to temporary suspension or limitation of an operating certificate as provided for in Mental Hygiene Law, section 31.16(b), nor shall it prevent the commissioner from seeking a temporary restraining order or such other injunctive relief as may be permitted by Mental Hygiene Law, sections 31.19 and 31.21 under the circumstances stated therein.

(d) The hearing shall commence within 10 days from the receipt of the request for the hearing. The notice of hearing shall be served upon the person charged with a violation not less than 24 hours prior to the commencement of the hearing. Such service may be made in any manner permitted herein sufficient to provide the requisite 24-hour notice. The person charged with a violation may serve an answer upon the Office of Mental Health at any time prior to the commencement of the hearing. No request for an adjournment shall be granted without the concurrence of all parties and the hearing officer.

(e) Unless otherwise agreed to by all parties, the hearing officer shall set forth his or her findings and recommendations for action by written report to the commissioner within 10 days of receipt of the entire transcript of the hearing. The record of the hearing, together with the hearing officer's report, shall be transmitted forthwith to the commissioner for final determination and order. The hearing officer shall also serve a copy of the report on all parties.

(f) The commissioner shall issue a ruling within 10 days after the receipt of the hearing officer's report. Submission of any responses or replies need not be considered.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.8 Hearing procedures: denial of request for rate revision

(a) This section shall apply to hearings held pursuant to any law or regulation giving a facility licensed by the Office of Mental Health the right to request a hearing to appeal a determination by the commissioner regarding the facility's request for revision of a certified rate of payment. Where a conflict exists between this section and any other section of this Part, the provisions of this section shall be controlling.

(b) If the commissioner denies some or all of the revisions to the rate requested by a provider, the determination shall be final unless, within 30 days of service of the notification of denial, the provider requests a hearing pursuant to this Part. The notification of denial, as served on the provider, shall be deemed to be the notice of proposed action under section 503.4(a) of this Part.

(c) If the commissioner approves the revisions to the rate requested by the provider and the State Division of the Budget denies the revision, the provider shall have no further right to administrative review pursuant to this Part.

(d) A request for a hearing pursuant to this section shall be sent to the commissioner by registered or certified mail and shall contain a statement of the factual issues in dispute.

(e) Upon receipt of a request for a hearing, the commissioner shall determine whether a hearable factual issue is in dispute. If it is determined that there is no factual issue in dispute, the request for a hearing shall be denied; no administrative appeal shall be available from this determination. When it is determined that there is a factual issue in dispute, the commissioner shall order an administrative hearing to be held.

(f) The burden of proof shall be on the provider to prove by clear and convincing evidence that findings of fact on which the determination was based are incorrect.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 503.9 Hearing procedures: revision of certified rate of payment pursuant to audit findings

(a) This section shall apply to hearings held pursuant to any law or regulation giving a facility licensed by the Office of Mental Health the right to request a hearing to appeal an agency audit finding which results in a proposed revision of a certified rate of payment. This section does not apply to hearings pursuant to audits conducted by the Department of Social Services, which shall be conducted in accordance with applicable regulations of the State Department of Social Services. Where a conflict exists between this section and any other section of this Part, the provisions of this section shall be controlling.

(b) If the commissioner affirms some or all of the Office of Mental Health's proposed revision of a certified rate of payment upon administrative review of the audit findings, the provider shall have a right to a hearing pursuant to this Part.

(c) The proposed revision of a certified rate of payment resulting from an audit finding, as adjusted in accordance with the determination after administrative review, shall be final unless, within 30 days of service of the determination, the provider requests a hearing. The notice of the final audit findings, as served on the provider, shall be deemed to be the notice of proposed action under section 503.4(a) of this Part.

(d) A request for a hearing pursuant to this section shall be sent to the commissioner by registered or certified mail and shall contain a statement of the factual issues in dispute.

(f) The burden of proof shall be on the provider to prove by clear and convincing evidence that findings of fact on which the determination was based are incorrect.

Part 504 Placement Of Individuals Leaving Transitional Care Funding

N.Y. Comp. Codes R. & Regs. Tit. 14 § 504.1 Background and intent

(a) This Part establishes the process for determining and offering appropriate placement and services in programs licensed and operated by New York State to individuals with mental illness receiving transitional care funding.

(b) This Part establishes standards for an administrative review and informal hearing process should an objection to a placement, which results in a request for an administrative review, be made.

(c) The Office of Mental Health has a responsibility to assist in locating placements and/or services for individuals currently receiving transitional care funding and to complete such placements by January 1, 1999.

(d) The Office of Mental Health has responsibility to assist in locating placements and/or services for an individual reaching 21 years of age while attending a program or residential school which provides services to children, in order that no new transitional care placements occur after July 1, 1996.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 504.2 Legal base

(a) Section 7.09 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his/her jurisdiction.

(b) Sections 7.37 and 7.38 of the Mental Hygiene Law grant the Commissioner of Mental Health the authority to set forth a process for placement of individuals in receipt of transitional care funding and to set standards which guarantee the right to administrative review and a hearing regarding placements of individuals receiving transitional care funding.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 504.3 Applicability

(a) This Part shall apply to those individuals with responsibility for the process of determining an appropriate placement for individuals who are currently receiving transitional care funding, the individual receiving transitional care funding, and the individual's guardian or another individual who has been actively involved in the care of the individual and who can represent the individual's interests.

(b) This Part shall apply to administrative review regarding placements of individuals who are currently receiving transitional care funding.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 504.4 Definitions

(a) Administrative review for purposes of this regulation shall be by the Commissioner of Mental Health or his/her designee. Such review shall be conducted as a hearing pursuant to section 504.6 of this Part.

(b) Appropriate placement and services means meeting an individual's needs for care and treatment, as determined by clinical staff exercising professional judgement.

(d) Transitional care for purposes of this Part shall mean care and treatment of persons:

(1) who were placed in foster care by a social services district pursuant to Article 6 of chapter 600 of the Laws of 1994 and who have become 21 years of age, or who were placed in a residential educational placement by a school district pursuant to article 89 of the Education Law and who are no longer eligible for free educational services because they have completed the school year in which they became 21;

(2) who were disabled and in need of residential care prior to becoming age 21 or prior to becoming ineligible for free education services and who have since remained continuously disabled and continuously in need of residential care;

(3) who became 21 or become ineligible for free educational services prior to July 1st, 1996;

(4) with respect to whom the Office of Mental Health, as appropriate, has approved a plan of continued out-of-home care for the person but has not yet identified a currently available appropriate placement within those care systems;

(5) whose residential needs can be met by the facility in which the persons resided prior to becoming age 21 or becoming ineligible for free educational services; and

(6) with respect to whom approved expenditures for transitional care currently are being made by a social services district pursuant to section 466(2) of the Social Services Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 504.5 Placement process

(a) An individual receiving transitional care funding shall be interviewed and his/her clinical records evaluated for purposes of making a determination regarding an appropriate placement and services for care and treatment.

(b) An appropriate placement and services will be sought which meet the individual's needs for care and treatment, as determined by appropriate clinicians exercising professional judgement. The Office of Mental Health shall also honor all requests for information regarding non-residential services, including but not limited to at-home family support.

(c) The individual, the individual's guardian, or another individual who has been actively involved in the care of the individual and who can represent the individual's interests, shall be notified in writing of a proposed placement(s) and services.

(d) A visit to the proposed placement(s) shall be arranged for the individual, the individual's guardian, or another individual who has been actively involved in the care of the individual and who can represent the individual's interests. Such preliminary visits are necessary for residential placement. Every effort shall be made to identify a convenient time for all concerned.

(e) A refusal to visit the proposed placement(s) and/or services shall constitute refusal of placement, at which time the commissioner or his/her designee shall notify the appropriate local department of social services which shall discontinue funding for transitional care for the individual.

(f) Following a visit to the proposed placement, the individual, the individual's guardian, or another individual who has been actively involved in the care of the individual and who can represent the individual's interests shall be notified in writing of the placement determined to be appropriate and the approximate date of transfer. Such notification shall include the program description and services to be provided and shall identify a person(s) to whom questions regarding the placement may be directed, an explanation of the administrative review process, and information regarding the availability of the Mental Hygiene Legal Service.

(g) An individual receiving transitional care funding, the individual's guardian or another individual actively involved in the care of the individual and who can represent the individual's interests may choose to remain in the current placement, or otherwise chose not to accept a placement identified as appropriate by the Office of Mental Health. The Office of Mental Health shall notify the local department of social services which shall discontinue funding for transitional care for the individual.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 504.6 Administrative review

(a) An administrative appeal may be requested by the individual, the individual's guardian or another individual actively involved in the care of the individual and who can represent the individual's interests within 30 days of receipt of written notification of the placement determined to be appropriate. Such request shall be forwarded in writing to the commissioner.

(b) If a timely request is made, a hearing shall be conducted by the commissioner or his/her designee. Such hearing shall be presided over by an individual, designated by the commissioner, who has no interest or bias in the matter involved. Both sides may call witnesses and present relevant evidence.

(c) A hearing shall occur within 30 days of request for such appeal and every effort shall be made to hold the review in a county of the State convenient to the individual requesting the review.

(d) The commissioner or his/her designee shall issue a written determination within 30 days of the administrative review. The reasons supporting the determination shall be fully explained in the determination, which shall address all specific issues raised by the individual and his or her representatives. All clinical reports and other documents considered will be attached to the determination. If it is determined that the proposed placement is appropriate for the individual receiving transitional care funding, the Commissioner of Mental Health shall notify the local department of social services which shall discontinue funding for transitional care for such individual on the transfer date.

(e) If an administrative appeal is not requested within the 30 days stipulated in subdivision (a) of this section, the process for placement will begin and funding of the transitional care will terminate on the transfer date.

Part 505 Requirements Regarding Testing, Confidentiality And Precautions Concerning The Human Immunodeficiency Virus (hiv) And Acquired Immune Deficiency Syndrome (aids)

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.1 Background and intent

(a) The purpose of this Part is to establish standards for the proper disclosure of HIV-related information.

(b) The purpose of this Part is to establish standards which limit the risk of discrimination and harm to an individual's privacy which unauthorized disclosure of HIV information can cause.

(c) The purpose of this Part is to establish standards which seek to enhance the safety of employees of facilities or programs operated or certified by the Office of Mental Health as well as other individuals.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.2 Legal base

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health (commissioner) the power 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 the mentally ill pursuant to an operating certificate.

(b) Section 2786 of the Public Health Law requires the commissioner to promulgate regulations which provide safeguards against discrimination, abuse and other adverse actions directed toward protected individuals; provide for the proper disclosure of HIV-related information; protect individuals in contact with protected individuals when such contact creates a significant risk of contracting or transmitting HIV infection and establish criteria for determining when it is reasonably necessary for a provider of a health or social service or a State agency or a local government agency to have or use confidential HIV-related information for supervision, monitoring, investigation or administration:

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.3 Applicability

(a) This Part applies to any provider of services which operates or proposes to operate a program certified or funded by the Office of Mental Health.

(b) This Part applies to facilities and programs operated by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.4 Definitions pertaining to this part

(a) Capacity to consent means an individual's ability, without regard to such individual's age, to understand and appreciate the nature and consequences of a proposed health care service, treatment or procedure, and to make an informed decision concerning such service, treatment or procedure.

(b) Confidential HIV-related information means any information, in the possession of a person who provides one or more health or social services or who obtains the information pursuant to a release of confidential HIV-related information, concerning whether an individual has been the subject of an HIV-related test or has HIV infection, HIV-related illness or AIDS, or information which identifies or reasonably could identify an individual as having one or more of such conditions, including information pertaining to such individual's contacts.

(c) Contact means an identified spouse or sex partner of the protected individual or person identified as having shared hypodermic needles or syringes with the protected individual.

(d) Health care provider means any physician, nurse, provider of services for the mentally disabled, or other persons involved in providing medical, nursing, counseling, or other health care or mental health service including those associated with, or under contract to, a health maintenance organization or medical services plan.

(e) Health facility means a hospital as defined in section 2801 of the Public Health Law, blood bank, blood center, sperm bank, organ or tissue bank, clinical laboratory, or facility providing care or treatment to persons with a mental disability.

(f) Health or social service means any public or private care, treatment, clinical laboratory test, counseling or education service for adult or children, and acute, chronic, custodial, residential, outpatient, home or other health care; public assistance; employment-related services, housing services, foster care, shelter, protective services, day care, or preventive services for the mentally disabled; probation services, parole services, correctional services; and detention and rehabilitative services, all as defined in section 2780 (8) of the Public Health Law.

(g) HIV infection means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

(h) HIV-related illness means any illness that may result from or be associated with HIV infection.

(i) HIV-related test means any laboratory test or series of tests for any virus, antibody, antigen or etiologic agent thought to cause or to indicate the presence of HIV infection.

(j) Person includes any natural person, partnership, association, joint venture, trust, public or private corporation or State or local government agency.

(k) Protected individuals means a person who is the subject of an HIV-related test or who has been diagnosed as having HIV infection, AIDS or HIV-related illness.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.5 Prevention of discrimination and abuse

(a) No individual will be subjected to discrimination because that individual is or is thought to be HIV infected. All individuals shall be appropriately served by programs operated or certified by the Office of Mental Health according to the needs of the individual's current psychiatric condition.

(1) All programs operated or certified by the Office of Mental Health shall admit, place, treat and discharge patients in accordance with established clinical criteria and shall not be used to house or quarantine individuals who do not need the psychiatric services provided.

(2) An individual's predominant need for nonpsychiatric medical care, as determined by an appropriately qualified physician, may render the individual inappropriate for care in a psychiatric treatment setting.

(b) Staff members of programs operated or certified by the Office of Mental Health have a duty to provide care to all persons who are appropriate for such programs.

(c) The Office of Mental Health will immediately investigate and take appropriate action with regard to all allegations of discrimination.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.6 Hiv-related testing

(a) Except as noted in paragraph (b)(2) of this section, no physician or other person authorized pursuant to law may order an HIV-related test without obtaining written informed consent.

(1) Informed consent shall consist of providing to the person to be tested or, if such person lacks capacity to consent, to the person lawfully authorized to consent to health care for such person:

(i) explanations regarding the nature of HIV infection and HIV-related illness, the accuracy of the HIV-related test, the significance and benefits of the test and its result;

(ii) information regarding discrimination problems which might occur as a result of unauthorized disclosure of HIV-related information and legal protections prohibiting such disclosures;

(iii) information on preventing exposure or transmission of HIV infection, including behavior which poses a risk of HIV transmission; and

(iv) information on the availability of anonymous HIV testing, including the location and telephone numbers of anonymous test sites, except that anonymous testing is not available to persons proposed for insurance coverage.

(b)

(1) Written informed consent must be executed on a form developed by the Department of Health or on another approved specifically by the Office of Mental Health.

(2) Informed consent is not required in the following situations:

(i) for court-ordered testing pursuant to Civil Practice Law and Rules, section 3121;

(ii) if otherwise authorized or required by State or Federal law;

(iii) for testing related to procuring, processing, distributing or use of a human body or human body part, including organs, tissues, eyes, bones, arteries, blood, semen or other body fluids for use in medical research or therapy, or for transplantation to persons, provided that if the test results are communicated to the tested person, post-test counseling is required;

(iv) for research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher; and

(v) for testing of a deceased person to determine cause of death or for epidemiological purposes.

(c) Post-test counseling, and referrals with respect to a positive or negative test result, shall be provided to the person who consented to the test. Such post-test counseling and referrals must address:

(1) coping emotionally with the test results;

(2) discrimination issues;

(3) information on the ability to release or revoke the release of confidential HIV-related information;

(4) information on preventing exposure to or transmission of HIV infection and the availability of medical treatment; and

(5) the need to notify contacts to prevent transmission, including information on State or county assistance in voluntary contact notification, if appropriate.

(d) A physician or other person authorized pursuant to law to order an HIV-related test shall certify on a laboratory requisition form that written informed consent has been obtained.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.7 Confidentiality and disclosure

(a) Access to an individual's clinical records, including HIV information, shall be limited to those staff with treatment responsibility for that individual. No flags on charts, lists on walls, or similar public displays shall be used to indicate individuals with HIV infection.

(b) No person who obtains confidential HIV-related information in the course of providing any health or social service or pursuant to a release of confidential HIV-related information may disclose or be compelled to disclose such information, except to the following:

(1) the protected individual or, when the protected individual lacks capacity to consent, a person authorized pursuant to law to consent to health care for the individual;

(2) any person to whom disclosure is authorized pursuant to a release of confidential HIV-related information;

(3) an agent or employee of a health facility or health care provider if:

(i) the agent or employee is authorized to access medical records;

(ii) the health facility or health care provider itself is authorized to obtain the HIV-related information; and

(iii) the agent or employee provides health care to the protected individual, or maintains or processes medical records for billing or reimbursement;

(4) a health care provider or health facility when knowledge of the HIV-related information is necessary to provide appropriate care or treatment to the protected individual or a child of the individual;

(5) a health facility or health care provider, in relation to the procurement, processing, distributing or use of a human body or a human body part, including organs, tissues, eyes, bones, arteries, blood, semen, or other body fluids, for use in medical education, research, therapy, or for transplantation to individuals;

(6) health facility staff committees, or accreditation or oversight review organizations authorized to access medical records, provided that such committees or organizations may disclose confidential HIV-related information only:

(i) back to the facility or provider of a health or social service;

(ii) to carry out the monitoring, evaluation, or service review for which it was obtained; or

(iii) to a Federal, State or local government agency for the purposes of supervising, monitoring or administering such facility;

(7) a Federal, State, county or local health officer when such disclosure is mandated by Federal or State law;

(8) authorized agencies as defined by Social Services Law, section 371 and corporations incorporated or organized to receive children for adoption or foster care, in connection with foster care or adoption of a child. Such agency shall be authorized to redisclose such information only pursuant to the provisions of article 27-F of the Public Health Law or in accordance with the provisions of section 373-A of the Social Services Law;

(9) third-party reimbursers or their agents to the extent necessary to reimburse health care providers, including health facilities, for health services, provided that, where necessary, an otherwise appropriate authorization for such disclosure has been secured by the provider;

(10) an insurance institution, for other than the purpose set forth in paragraph (9) of this subdivision, provided the insurance institution secures a dated and written authorization which indicates that health care providers, health facilities, insurance institutions, and other persons are authorized to disclose information about the protected individual, the nature of the information to be disclosed, the purposes for which the information is to be disclosed, and which is signed by:

(i) the protected individual;

(ii) if the protected individual lacks the capacity to consent, such other person authorized pursuant to law to consent for such individual; or

(iii) if the protected individual is deceased, the beneficiary or claimant for benefits under an insurance policy, a health services plan, or an employee welfare benefit plan as authorized in article 27-F of the Public Health Law;

(11) any person to whom disclosure is ordered by a court of competent jurisdiction pursuant to section 2785 of the Public Health Law;

(12) an employee or agency of the Division of Parole, Division of Probation and Correctional Alternatives, or Commission of Correction, in accordance with regulations promulgated by those agencies; and

(13) a medical director of a local correctional facility in accordance with regulations promulgated by the facility operator. Redisclosure by the medical director is prohibited except as permitted under Public Health Law, article 27-F and its implementing regulations.

(c) No confidential HIV-related information shall be disclosed pursuant to a general release. Disclosure is permitted for HIV-related information pursuant to a specific release form which has been developed or approved by the Department of Health. The release must be signed by the protected individual, or if the protected individual lacks capacity to consent, by a person authorized pursuant to law to consent to health care for the individual.

(1) All written disclosures of confidential HIV-related information must be accompanied by a statement prohibiting redisclosure. The statement shall include the following language or substantially similar language: "This information has been disclosed to you from confidential records which are protected by State law. State law prohibits you from making any further disclosure of this information without the specific written consent of the person to whom it pertains, or as otherwise permitted by law. Any unauthorized further disclosure in violation of State law may result in a fine or jail sentence or both. A general authorization for the release of medical or other information is not sufficient authorization for further disclosure."

(2) If oral disclosures are necessary, they must be accompanied or followed as soon as possible, but no later than 10 days, by the statement required in paragraph (1) of this subdivision. All disclosures, oral or written, shall be recorded in the individual's record.

(3) The statement required by paragraphs (1) and (2) of this subdivision is not required for release to the protected person or to his or her legal representative, for releases made by a physician or public health officer to a contact, or for releases made by a physician to a person authorized pursuant to law to consent to the health care of the protected person when the person has been counseled and the disclosure is medically necessary pursuant to Public Health Law, section 2782(4)(e).

(d) At time of discharge from a program operated or certified by the Office of Mental Health, a physician may disclose an individual's HIV status to an appropriate person at the program operated or certified by the Office of Mental Health which is assuming responsibility for the individual, after conducting a specific evaluation of the individual. Such evaluation shall include the individual's condition, the risk of HIV transmission, the individual's wishes regarding disclosure, and the risks of discrimination against the individual. The evaluation must be discussed with the individual. This evaluation and discussion shall be documented. If a decision is made not to disclose the individual's HIV status, the information contained within the evaluation and the fact that the evaluation was made shall not be disclosed.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.8 Protection of others at significant risk of infection

(a) Staff and patient protection. Since medical history and examination cannot reliably identify all patients infected with HIV or other blood-borne pathogens, blood and body fluid precautions shall be consistently used for all patients. This approach, referred to as "universal blood and body fluid precautions" or "universal precautions," shall be used in the care of all patients, particularly including those in emergency care settings in which the risk of blood exposure is increased and the infection status of the patient is usually unknown.

(b) Facilities and programs shall abide by any additional administrative guidelines regarding protective barriers or procedures as may be required by the Office of Mental Health.

(c) Staff will evaluate and educate individuals and utilize clinically appropriate methods to reduce the risk of HIV transmission through sexual contact.

(d) Each facility operated or certified by the Office of Mental Health shall:

(1) Implement and enforce a plan for the prevention of circumstances which could result in an employee or individual becoming exposed to blood or bodily fluids which could put the individual at risk for HIV infection, during the provision of services. Such a plan shall include:

(i) use of generally accepted protective barriers during the job-related activities which involve, or may involve, exposure to blood or body fluids. Such preventive action shall be taken by the employee with each client and shall constitute an essential element for the prevention of bi-directional spread of HIV;

(ii) use of generally accepted preventive practices during job-related activities which involve the use of contaminated instruments or equipment which may cause puncture injuries;

(iii) training at the time of employment and yearly staff development programs on the use of protective equipment, preventive practices, and circumstances which represent a risk for all employees whose job-related tasks involve, or may involve, exposure to blood or body fluids;

(iv) provision of personal protective equipment for employees which is appropriate to the tasks being performed; and

(v) a system for monitoring preventive programs to assure compliance and safety.

(2) Implement and enforce a plan for the management of individuals who are exposed to blood or body fluids. The plan shall include:

(i) a system for voluntary reporting of all exposures thought to represent a circumstance for significant risk; and

(ii) availability of services for evaluating the circumstances of a reported exposure and providing appropriate follow-up of the exposed individual which includes:

(a) medical and epidemiological assessment of the individual who is the source of the exposure, where that individual is known and available;

(b) if epidemiologically indicated, HIV counseling and testing of the source individual as permitted under Public Health Law, article 27-F. Where the HIV status is not known to the exposed individual, disclosure can be made only with the express written consent of the protected individual or pursuant to court order; and

(iii) assurances for protection of confidentiality for those involved in reported exposures.

(3) The plans prepared pursuant to section 505.7(b)(1) and (2) of this Part shall be subject to the approval of the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.9 Contact notification

(a) A physician may disclose HIV-related information, without the protected person's consent, to a contact or to a public health officer when:

(1) the physician reasonably believes disclosure is medically appropriate and a significant risk of infection exists; and

(2) the protected person has been counseled to notify the contact and the physician reasonably believes the protected person will not inform the contacts.

(b) The physician must inform the protected person of the physician's intent to disclose. The physician must comply with the protected person's choice of whether the physician or health officer will attempt to notify the contact. All notification shall be in person, except where circumstances reasonably prevent doing so.

(d) The person notifying the contact shall provide or make a referral for appropriate medical advice and counseling relating to emotional coping and recommended behavior changes.

(e) If a protected person is now deceased and the physician reasonably believes the protected person had not informed his/her contacts and reasonably believes disclosure is medically appropriate and that a significant risk of infection exists, the physician may notify the contact or may request the public health officer to notify the contact. All such notifications shall be in person, except where circumstances reasonably prevent doing so, and the identity of the deceased shall not be disclosed.

(f) A physician shall have no obligation to identify or locate any contact.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 505.10 Monitoring

Employees and agents of the Office of Mental Health, Commission on Quality of Care and Advocacy for Persons with Disabilities, and other Federal, State and local agencies responsible for monitoring, inspecting, supervising, and investigating programs operated or certified by the Office of Mental Health shall have access to confidential HIV information to the extent necessary to discharge those responsibilities.

Part 506 Medical Assistance Rates Of Payment For Intensive Case Management Services (icm), Supportive Case Management (scm) And Blended Icm/scm Case Management Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.1 Background and intent

(a) The purpose of these regulations is to establish standards and methods for determining rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for case management services provided by intensive case management, supportive case management and blended ICM/SCM case management programs to active clients identified as persons with serious mental illness and enrolled with a provider of services.

(b) In order to be eligible for payments pursuant to title 11 of article 5 of the Social Services Law, an intensive case management, supportive case management or blended ICM/SCM case management program must meet the requirements of its agreement with the Office of Mental Health or the local governmental unit in addition to the requirements of title XIX of the Social Security Act as identified in section 502.2(d) of this Title and 18 NYCRR 505.16.

(c) The rates of payment established according to these regulations are intended to be adequate to meet the costs of an efficiently operated program.

(d) Notwithstanding any other provision of the law, case management services may be authorized by the designated case manager assigned to individuals comprising the populations as defined in section 506.4 of this Part and pursuant to criteria established by the commissioner and approved by the Director of the Budget.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.2 Legal base

(a) Section 7.09 (b) of the Mental Hygiene Law gives the commissioner the power and responsibility to plan, establish and evaluate programs and services for the benefit of the individuals with mental illness, and to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(b) Section 43.02 (c)(ii) of the Mental Hygiene Law provides that payments under the medical assistance program for services approved by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Budget.

(c) Section 364 (3) of the Social Services Law provide that each office within the Department of Mental Hygiene shall be responsible for establishing and maintaining standards for medical care and services received in institutions operated by it or subject to its supervision pursuant to the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.3 Applicability

(a) This Part applies to any provider of services which operates or proposes to operate an intensive case management, supportive case management or blended ICM/SCM case management program.

(b) This Part applies to the operation or proposed operation of an intensive case management, supportive case management or blended ICM/SCM case management program for a client identified as a person with a serious mental illness and enrolled with a provider of services as follows:

(1) an intensive case management, supportive case management or blended ICM/SCM case management program provided by a local government unit or voluntary agency; or

(2) an intensive case management, supportive case management or blended ICM/SCM case management program provided by a provider of service licensed pursuant to article 31 of the Mental Hygiene Law; or

(3) an intensive case management program operated by a State-operated psychiatric center.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.4 Definitions pertaining to this part

For the purposes of this Part:

(a) Client related definitions.

(1) Active client shall mean an enrolled client who receives four or more face-to-face contacts with an intensive case manager within one month or two or more face-to-face contacts with a supportive case manager within one month, except as otherwise provided in sections 506.5(b), (f), 506.6(d) and 506.7(c), (f) of this Part.

(2) Collaterals means persons who are:

(i) members of a child's or adolescent's family or household, or significant others who regularly interact with the child or adolescent and are directly affected by or have the capability of affecting his or her condition; and

(ii) are identified in the treatment or psychiatric rehabilitation service plan as having a role in treatment and/or identified in the preadmission notes as being necessary for participation in the evaluation and assessment of the child or adolescent prior to admission.

(3) Enrolled client shall mean a person scheduled to receive intensive case management, supportive case management or blended ICM/SCM case management services from a designated provider of services and a designated intensive case manager or supportive case manager.

(4) Intensive case management recipients shall mean persons with a serious mental illness that is marked by impairment in self care, social functioning, activities of daily living, economic self sufficiency, self direction and concentration and which interferes with the ability to function independently, appropriately and effectively. Such recipients are identifiable within four subpopulations of persons with serious mental illness as follows:

(i) high-needs persons; and

(ii) extended care state psychiatric center patients; and

(iii) homeless persons; and

(iv) seriously and emotionally disturbed children and adolescents.

(b) Reimbursement related definitions.

(1) Blended ICM/SCM program shall mean a program that provides case management services to persons with a serious mental illness and which allows case managers to deliver services through a team approach and shared caseloads.

(2) Client month shall mean a calendar month in which an enrolled client or appropriate collateral receives the required number of face- to-face contacts with a case manager.

(3) Commissioner shall mean the Commissioner of Mental Health.

(4) Intensive case management program means services provided by a designated intensive case manager to promote managed care by coordinating all aspects of services needed by persons with a serious mental illness and enrolled for such services with a provider of services, for as long as necessary.

(5) Provider of services means the organization which is legally responsible for the operation of a program. The organization may be an individual, partnership, association, corporation, public agency or a psychiatric center or institute operated by the Office of Mental Health.

(6) Shared case management staff means staff which are employed under the auspice of the Office of Mental Health while assigned to other than a State-operated psychiatric center.

(7) Supportive case management program (SCM) means a variant of the intensive case management program which provides services to individuals who require less support than ICM clients.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.5 Standards pertaining to reimbursement for intensive case management services

(a) In order to receive reimbursement for the provision of services, a provider of an intensive case management program shall provide services to a person identified as a person with a serious mental illness and who is also enrolled as a client of the provider of case management services.

(b) A provider of service must indicate to the Office of Mental Health which one of the following billing methodologies will be adopted by the program:

(1) a minimum of four face-to-face contacts within a month between an intensive case manager and an active client shall be considered a billable service; or

(2) a minimum of two face-to-face contacts within a month between an intensive case manager and an active client shall be considered a billable service, if the intensive case manager's aggregate monthly contacts average four face-to-face contacts per active client.

(1) Collateral contacts shall not be counted as a billable service for adult active client.

(2) Collateral contacts may be counted as a billable service for an active child or adolescent client; however, no more than 25 percent of the aggregate contacts may be collateral contacts. Collateral contacts shall not count toward the minimum of two face-to-face contacts which may be considered a billable service pursuant to paragraph (b)(2) of this section.

(3) Contacts with a group composed of collaterals of more than one child or adolescent may be gathered together for the purposes of goal-oriented problem solving, assessment of treatment strategies and the developmental or practical skills for assisting the child or adolescent with the management of his or her illness; provided, however, that at least one collateral of the client for whom a billable service is being submitted must be a participant of the group.

(d) Only one contact per day shall be allowed as a billable service; provided, however, that two contacts per day shall be so allowable if one contact is a face-to-face contact with a child or adolescent client and the other contact is a face-to-face contact with a collateral of a child or adolescent client. The two contacts must occur separately and be consistent with a written service plan.

(e) For an intensive case management program that employs more than one intensive case manager, the program may deliver services through a team approach. Each enrolled client shall have a primary intensive case manager but team members must provide shared case management planning, specialty services and coverage during leaves, vacations and sick days and bill for such services pursuant to this Part.

(f) While awaiting discharge from the intensive care management program, a client shall be considered to be on transitional status and may receive one contact per month for a period of two months prior to discharge. The one contact per month during this time period is a billable service.

(g) Shared intensive case management staff shall be responsible to the Office of Mental Health for purposes of rate setting, billing and reimbursement for intensive case management services.

(h) Each provider of services shall furnish any and all information and records concerning the provision of intensive case management services which may be requested by the Office of Mental Health. Such information and records shall be provided as the Office of Mental Health may prescribe including but not limited to, the program of services, individual client specific services and statistical, administrative and fiscal operations carried out under the agreement.

(i) If a provider does not achieve the required aggregate number of contacts, billing associated with the difference between the required number of contacts and achieved number of contacts shall be withheld pursuant to a schedule to be furnished to the provider by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.6 Standards pertaining to reimbursement for supportive case management services

(a) In order to receive reimbursement for the provision of services, a provider of a supportive case management program shall provide services to persons who are enrolled as clients of the provider of services. Such individuals shall be in need of less intensive support than that provided in the intensive case management program.

(b) A minimum of two face-to-face contacts within a month between a supportive case manager and an active client shall be considered a billable service.

(c) A face-to-face contact between a supportive case manager and an active client shall be counted as a separate contact for purposes of reimbursement per patient day regardless of the number of face-to-face contacts provided or other outpatient programs in which the active client participates in a single day.

(d) While awaiting discharge from the supportive case management program, a client shall be considered on transitional status and may receive one contact per month for a period of two months prior to discharge. The one contact per month during this time period is a billable service.

(e) Each provider of services shall furnish any and all information and records concerning the provision of supportive case management services which may be requested by the Office of Mental Health. Such information and records shall be provided as the Office of Mental Health may prescribe including but not limited to, the program of services, individual client specific services and statistical, administrative and fiscal operations carried out under the agreement.

(f) Collateral contacts shall not be counted as a billable service for the supportive case management program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.7 Standards pertaining to reimbursement for blended icm/scm services

(a) The blended ICM/SCM program allows case managers to deliver services through a team approach and shared caseloads. The blended options for ICM/SCM are as follows:

(1) one ICM case manager and one SCM case manager;

(2) one ICM case manager and two SCM case managers;

(3) two ICM case managers and one SCM case manager; and

(4) any multiple of the options presented in paragraph (1), (2) or (3) of this subdivision.

(b) In order to receive reimbursement for the provision of services, a provider of a blended ICM/SCM program shall provide services to persons who meet the criteria set forth in sections 506.5(a) and 506.6(a) of this Part.

(c) A minimum of two face-to-face contacts within a month between a member of a team of a blended ICM/SCM case management program and an active client shall be considered a billable service; provided, however, that the number of aggregate monthly contacts for the blended ICM/SCM program must be consistent with the requirements set forth in sections 506.5(b)(2) and 506.6(b) of this Part.

(d) A face-to-face contact between a member of a blended ICM/SCM case management team and an active client shall be counted as a separate contact for purposes of reimbursement per patient day regardless of the number of face-to-face contacts provided or other outpatient programs in which the active client participates in a single day.

(e) Collaterals. Collateral contacts shall be counted as a billable service pursuant to the criteria established in sections 506.5(c) and 506.6(f) of this Part.

(f) While awaiting discharge from the blended ICM/SCM case management program, a client shall be considered on transitional status and may receive one visit per month for a period of two months following discharge. The one visit per month during this time period is a billable service.

(g) Each blended ICM/SCM provider of services shall furnish any and all information and records concerning the provision of blended ICM/SCM case management services which may be requested by the Office of Mental Health. Such information and records shall be provided as the Office of Mental Health may prescribe including but not limited to, the program of services, individual client specific services and statistical, administrative and fiscal operations carried out under the agreement.

(h) If a provider does not achieve the required aggregate number of contacts, billings associated with the difference between the required number of contacts and achieved number of contacts shall be withheld pursuant to a schedule to be furnished to the provider by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.8 Audits

(a) Each provider of intensive case management, supportive case management or blended ICM/SCM case management services shall maintain the records which formed the basis of the statistical and financial reports submitted to the commissioner for six years from the date on which the reports were submitted to the commissioner, or for such longer period as may be required under Federal law.

(b) All such records shall be subject to audit for a period of six years from the date on which all required reports were filed with the commissioner or the date on which such reports were due, whichever is later

(c) On-site audits or desk audits shall be conducted by the commissioner at a time and place and in a manner to be determined by the commissioner.

(d) The commissioner may enter into agreements with other organizations or agencies having audit responsibilities to audit the financial and statistical records of any provider of intensive case management, supportive case management or blended ICM/SCM case management services.

(e) At the conclusion of the audit, the provider of intensive case management, supportive case management or blended ICM/SCM case management services shall be afforded an opportunity to submit additional documentation to the commissioner. After receipt and review of such additional documentation, a copy of the audit findings and notice of any proposed rate revision shall be sent to the provider of intensive case management, support case management or blended ICM/SCM case management services.

(f) Any proposed rate revisions resulting from the implementation of audit findings shall be final unless within 30 days of receipt of the proposed rate revision the provider of intensive case management, supportive case management or blended ICM/SCM case management services requests a hearing on factual issues. Requests for hearing, and the conduct of such hearings, shall be pursuant to Part 503 of this Title.

(g) Revisions to rates determined in accordance with the provisions of this section shall be retroactive to the rate year covered by the audit. Any resulting overpayment shall be satisfied by either retroactive adjustments of the provisional rate paid, based on the period audited, or prospective adjustment of the current certified rate at the discretion of the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.9 Rates of payment

(a) Rates of payment shall be established on a prospective basis.

(b) Each rate of payment under this section shall be a regional monthly fee.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.10 Case management services in inpatient facilities

Individuals who have been admitted to discrete psychiatric units of hospitals licensed pursuant to article 28 of the Public Health Law, residential treatment facilities for children and youth, or individuals 21 years of age of less or 65 years of age or older who are receiving services at State-operated psychiatric facilities or hospitals licensed pursuant to article 31 of the Mental Hygiene Law and who have an anticipated discharge within 90 days or less, may receive case management services. Such services shall be billed pursuant to the standards established in sections 506.5, 506.6 and 506.7 of this Part, if such services are required in order to facilitate the process of transition to community services and to enable the individual to gain access to needed medical, social, educational, and other services in the community.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 506.11 Individuals enrolled in assisted outpatient treatment

(a) Each provider of services approved or licensed to provide intensive care management services, supportive case management services or blended ICM/SCM services shall establish mechanisms to ensure priority access by individuals who have been referred to the provider and who are enrolled in an assisted outpatient treatment program established pursuant to section 9.60 of the Mental Hygiene Law.

(b) Such provider of services shall cooperate with the local governmental unit or the commissioner, or their authorized representatives, to ensure priority access by such individuals, and in the development, review, and implementation of treatment plans for them.

(c) Prior to discharge from an intensive case management, supportive case management or blended ICM/SCM program of an individual who is also enrolled in an assisted outpatient treatment program, the provider of services shall notify the director of the assisted outpatient treatment program and, if appropriate, the individual's case manager.

(d) Any and all related information, reports, and data which may be requested by the commissioner or the local governmental unit in connection with an individual who is also enrolled in an assisted outpatient treatment program shall be furnished by the provider of services.

(e) Any requests for clinical records regarding persons who are the subject of, or who are under consideration for, a petition for an order authorizing assisted outpatient treatment, from persons or entities authorized pursuant to section 33.13 or 33.16 of the Mental Hygiene Law, shall be given priority attention and responded to without delay.

Part 507 Community Based Service System For Children

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.1 Background and intent

(a) Chapter 499 of the Laws of 1989 authorized the establishment of funding for community based services for children with serious emotional disturbance.

(b) The purpose of a community based system of mental health services for children with serious emotional disturbance is to provide services which are responsive to children and families within their community so as to avoid unnecessary institutionalization and separation of children from their families and communities.

(c) The purpose of these regulations is to establish standards for the use of the authorized funding for purposes of developing a comprehensive community based service system within the community for children with serious emotional disturbance.

(d) These regulations provide for the establishment of an interagency group that has responsibility for monitoring the system of services, identifying gaps in the service system, recommending the development of services as appropriate and providing technical assistance to the member agencies.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.2 Legal base

(b) Section 41.49 of the Mental Hygiene Law authorizes the Commissioner of Mental Health to promulgate rules and regulations for the operation and funding of programs that expand the existing community based system of mental health services or create new services for children with serious emotional disturbance.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.3 Applicability

(a) These regulations apply to a local governmental unit which elects to participate in the community based service system for children with serious emotional disturbance.

(b) These regulations apply to a provider of services which has contracted with a local governmental unit to provide community based services to children with serious emotional disturbance.

(c) These regulations apply to the establishment and operation of a local interagency group. Such interagency group is to be responsible for monitoring the community based system of services, identifying gaps in the service system, recommending the development of services where appropriate and providing technical assistance to the member agencies. An existing interagency group which is able to perform these functions may be appropriate. This group shall be advisory to the local governmental unit with responsibility for the provision of mental health services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.4 Definitions pertaining to this part

(a) Expanded children's services is a program established to provide new and expanded community based services to children and adolescents with serious emotional disturbance and to provide grants for 100 percent net deficit costs for those services.

(b) Serious emotional disturbance means a child or adolescent has a designated mental illness diagnosis according to the most current Diagnostic and Statistical Manual of Mental Disorders (DSM) and has experienced functional limitations due to emotional disturbance over the past 12 months on a continuous or intermittent basis. The functional limitations must be moderate in at least two of the following areas or severe in at least one of the following areas:

(1) ability to care for self (e.g., personal hygiene; obtaining and eating food; dressing; avoiding injuries); or

(2) family life (e.g., capacity to live in a family or family like environment; relationships with parents or substitute parents, siblings and other relatives; behavior in family setting); or

(3) social relationships (e.g., establishing and maintaining friendships; interpersonal interactions with peers, neighbors and other adults; social skills; compliance with social norms; play and appropriate use of leisure time); or

(4) self-direction/self-control (e.g., ability to sustain focused attention for a long enough period of time to permit completion of age-appropriate tasks; behavioral self-control; appropriate judgment and value systems; decision-making ability); or

(5) ability to learn (e.g., school achievement and attendance; receptive and expressive language; relationships with teachers; behavior in school).

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.5 Standards pertaining to eligibility

(a) All local governmental units are eligible to participate in the community based service system for children with serious emotional disturbance.

(b) All providers of service who enter into contract with the local governmental unit for such purposes are eligible to participate in the community based service system for children with serious emotional disturbance.

(c) The recipients of services provided by the community based service system shall be children and adolescents with serious emotional disturbance as defined in section 507.4 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.6 Standards pertaining to funding

(a) Funding for this expansion of the community based service system is limited to the amount appropriated on an annual basis to the Office of Mental Health for such purposes and to the amount awarded to the locality. Such funding may continue on an annual basis with the approval of the Office of Mental Health.

(b) Funding shall be a grant for 100 percent of the net deficit cost of a program or part of a program that has been approved by the Office of Mental Health to serve children with serious emotional disturbance in the community based service system. Each locality receiving a grant will be responsible for assuring that revenue available from other sources has been claimed and used to reduce the net deficit amount.

(c) Funding shall be solely awarded to the local governmental unit. Such funding may be contracted to other service providers or individuals by the local governmental unit with approval from the Office of Mental Health. The local governmental unit must demonstrate to OMH that the contractor has the capacity to provide effective services to children.

(d) Funding shall be for new and expanded services. Each local governmental unit receiving grant funds must submit a statement that the ECS funding will not be used to supplant existing local funding. The local contributions for expenditures in any local fiscal year for local or unified services provided to children with serious emotional disturbance in accordance with this Part, as applicable, must remain equal to or greater than the amount expended by such local governmental unit in the last complete fiscal year preceding the effective date of this Part.

(e) Calculation of such expenditures shall be based upon maintenance of the following:

(1) levels of staffing; or

(2) number of children receiving services; or

(3) number of service visits; or

(4) amount allocated for specific children's services.

(f) The local governmental unit shall be responsible for determining the current local contribution, the intent to maintain that level and the methodology for monitoring the local level of expenditure for the community based service system for children with serious emotional disturbance. The local governmental calculation and methodology must be approved by the Office of Mental Health prior to the grant award. Annual updates shall be required.

(g) The local governmental unit and any provider of service participating in the community based service system shall be responsible for participation in any evaluation of the services or audit of expenditures undertaken by this funding.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.7 Standards pertaining to participation

(a) Participation in the community based service system by a local governmental unit shall be contingent upon an affirmative election by the local governmental unit, the approval of the Office of Mental Health and the availability of funds.

(b) A local governmental unit may elect to participate in the expanded children's services program in conjunction with one or more other local governmental units.

(c) A local governmental unit which elects to participate in the expanded children's services program for children with serious emotional disturbance shall be responsible for the coordination of all such community based services within its defined geographical area. Such responsibilities shall include but not be limited to the following:

(1) Identification of essential services in the community based service system which shall include but not be limited to the following:

(i) the capacity to perform comprehensive assessments and ongoing treatment of children with serious emotional disturbances and their families;

(ii) determination of access points to community based services within the local governmental unit's defined geographical location;

(iii) the ability to provide emergency services that assure the safety of children and are capable of beginning treatment when appropriate; and

(iv) case management for children and families.

(2) Staff support and coordination for the interagency group and its functions.

(3) The integration of community based services for children with serious emotional disturbance into the area so as to effectively maintain such children in the home and community.

(4) The integration of community based services for children with serious emotional disturbance within the local government plan of the geographical area to be served.

(5) The accommodation of the special needs of ethnic minorities and non-English speaking children and families.

(6) Written agreements for services provided in other geographic areas or by other providers of services.

(7) The establishment or identification of an interagency group of providers of service, local education programs, parents, advocates and consumers.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 507.8 Standards pertaining to recordkeeping

(a) The local governmental unit shall maintain records of all service providers participating in the community based service system for children with serious emotional disturbance.

(b) The local governmental unit shall maintain a record of referrals for service received by the community based service system for children with serious emotional disturbance. Such record shall include information on the disposition of all referrals.

(d) Such statistical information shall be prepared and maintained as may be necessary for the effective operation of the community based service system for children with serious emotional disturbance and as may be required by the Office of Mental Health.

(e) Statistical information shall be reported to the Office of Mental Health in a manner and within time limits specified by the Office of Mental Health and shall be the responsibility of an individual whose name and title shall be known to the Office of Mental Health.

Part 508 Medical Assistance Rates Of Payment For Assertive Community Treatment Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.1 Background and intent

(a) This Part establishes standards and methods for determining rates of payment made pursuant to title 11 of article 5 of the Social Services Law for assertive community treatment (ACT) services provided to active clients by ACT programs.

(b) To receive payments pursuant to title 11 of article 5 of the Social Services Law, an ACT program must be approved or certified by the Office of Mental Health, and meet the requirements of XIX of the Social Security Act.

(c) Rates of payment established according to these regulations are intended to be adequate to meet the costs of an efficiently and economically operated program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.2 Legal base

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law give the Commissioner of Mental Health the power and responsibility to plan, establish and evaluate programs and services for the benefit of individuals with mental illness, and to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(b) Sections 364 and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.

(c) Subdivision (a) of section 43.02 of the Mental Hygiene Law provides that payments under the medical assistance program for services approved by the Office of Mental Health shall be at rates certified by the commissioner and approved by the Director of the Budget.

(d) Subdivision (b) of section 43.02 of the Mental Hygiene Law gives the commissioner authority to request from operators of facilities licensed by the Office of Mental Health such financial, statistical and program information as the commissioner may determine to be necessary.

(e) Subdivision (c) of section 43.02 of the Mental Hygiene Law gives the commissioner authority to adopt rules and regulations relating to methodologies used in establishing schedules of rates of payment for services.

(f) Section 365-m of the Social Services Law authorizes the Commissioner of the Office of Mental Health and the Commissioner of the Office of Addiction Services and Supports, in consultation with the Department of Health, to contract with regional behavioral health organizations to provide administrative and management services for the provision of behavioral health services.

History

Amended New York State Register March 30, 2022/Volume XLIV, Issue 13, eff. 3/30/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.3 Applicability

(a) This Part applies to any provider of services which has been approved or certified pursuant to Part 551 of this Title to operate an assertive community treatment (ACT) program.

(b) This Part applies to the operation of an ACT program by:

(1) a local governmental unit, general hospital or voluntary agency;

(2) a provider of services licensed pursuant to article 31 of the Mental Hygiene Law;

(3) any part of a general hospital as defined in article 28 of the Public Health Law which is licensed by the office to provide mental health services; or

(4) a State-operated psychiatric center.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.4 Definitions

(a) Active client in assertive community treatment means an individual who:

(1) is admitted to an assertive community treatment program;

(2) has an individual treatment plan; and

(3) may or may not be currently receiving services.

(b) Adult means an individual 18 years old and over.

(c) Child means an individual up to 21 years of age. Individuals ages 18-21years with mental illness may be considered for either Youth ACT or Adult ACT programs for the purposes of receiving services.

(d) Child Family Treatment and Support services means an array of six treatment, rehabilitative and support services to assist children and youth with mental health and/or behavioral challenges to function successfully within their homes and community, primarily provided in nontraditional settings including in the home or community settings.

(e) Children's Home and Community (HCBS) based services means services provided to individuals in the least restrictive environment possible by providing services and support to children and their families at home and in the community. HCBS are designed for people who, but for these services, would require an institutional level of care such as a long-term care facility or psychiatric inpatient care.

(f) Assertive community treatment (ACT) program means a comprehensive program of ACT treatment services established by the office to serve identified clients with serious mental illness or serious emotional disturbance who require intensive services in order to remain in the community.

(g) Assertive community treatment (ACT) services means a comprehensive and integrated combination of treatment, rehabilitation, case management, and support services primarily provided in the client's residence or other community locations by a mobile multi-disciplinary mental health treatment team.

(h) Collaterals means

A contact that shall occur with the recipient's family, and others significant in their life, that provide a direct benefit to the recipient and is conducted in accordance with, and for the purpose of, advancing the recipient's Service Plan; and for coordination of services with other educational, community service providers and medical providers.

(i) Commissioner means the Commissioner of Mental Health.

(j) Concurrent Review means the review of the clinical necessity for continued inpatient behavioral health services, resulting in a non-binding recommendation regarding the need for such continued inpatient services.

(k) Contact means a face-to-face interaction of at least 15 minutes duration where at least one ACT service is provided between an ACT team staff member and a client or collateral.

(l) Family means those members of the recipient's natural family, family of choice, or household who interact with the recipient and are directly affected by, or have the capability of affecting, the recipient's condition.

(m) Month means any time between and including the first and last days of any calendar month in a given year.

(n) Office means the Office of Mental Health.

(o) PROS services means personalized recovery oriented services provided pursuant to Part 512 of this Title.

(p) Provider of services means an individual, partnership, association, corporation, public agency, or a psychiatric center or institute licensed by the office which is legally responsible for the operation of an ACT program.

(q) Single point of access (SPOA) is an entity in each county that manages referrals to the ACT Program.

History

Amended New York State Register March 30, 2022/Volume XLIV, Issue 13, eff. 3/30/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.5 Standards pertaining to reimbursement

(a) General requirements.

(1) ACT programs are required to be approved or certified by the office to provide ACT treatment services.

(2) ACT staff shall have responsibility for treatment, rehabilitation, case management, and support services for ACT clients.

(3) There shall be at least one direct care staff person for every 10 clients. Exceptions to the case ratio requirement may be allowed by the office.

(4) In no instance shall an individual be admitted to an ACT program while concurrently enrolled in an Health Home Care Management, licensed day treatment program for children, or licensed continuing day treatment program as defined in Parts 506, 587 and 599 of this Title.

(5) An individual may be both an active ACT client and enrolled in a personalized recovery-oriented services (PROS) program, operating pursuant to Part 512 of this Title, for no more than three months within any 12-month period.

(6) Providers of ACT services shall furnish any and all information and records requested by the office, including, but not limited to, clientspecific, statistical, administrative, and fiscal information.

(7) A child may be both an active Youth ACT client and enrolled in CFTSS and/or HCBS 30 days prior to discharge from Youth ACT only as a transition from Youth ACT to an alternate or lower level of care.

(b) Reimbursement standards.

(1) Reimbursement shall be made only for services provided to persons who:

(i) meet the definition of persons with serious mental illness or serious emotional disturbance as set forth in section 1.03 of the Mental Hygiene Law;

(ii) have been referred or approved by the SPOA for enrollment in ACT services; and

(iii) are active clients of the ACT provider.

(2) Rates of payment shall be established on a prospective basis.

(3) Each rate of payment established under this Part shall be a monthly fee determined by the commissioner and approved by the Division of the Budget.

(4) Reimbursement for services provided to a client who is admitted to an ACT treatment program and active in ACT treatment services shall only be made for the client's participation in that program, except as otherwise provided in paragraph (c)(3) of this section.

(5) Reimbursement for clinic or continuing day treatment services provided to a client, other than for pre-admission visits, will be deducted from the amount paid to the provider of ACT services.

(6) Reimbursement for services provided to clients who are receiving both ACT and Child and Family Treatment and Support Services (CFTSS) or Home and Community Based Services (HCBS) or PROS services as permitted by subdivision (a) of this section will be limited to the partial step-down payment rate specified in subdivision (c) of this section.

(7) No more than one client or collateral contact per day shall be allowed as a billable service, except that two contacts per day shall be allowed as a billable service if one contact is face-to-face with the client and the other contact is face-to-face with a collateral. The two contacts must occur separately.

(8) Reimbursement shall be made only for services identified and provided in accordance with an individual's treatment plan. The treatment plan shall develop, evaluate and revise, as needed, an individual's course of treatment based on the client's diagnosis, expressed desires, behavioral strengths and weaknesses, problems and service needs.

(9) Reimbursement for collateral contacts may be made for:

(i) contacts by ACT team members with collaterals; or

(ii) contacts by ACT team members with a group composed of collaterals of more than one client, for the purpose of goal-oriented problem solving, assessment of treatment strategies, assisting family members for the benefit of the client and provision of practical skills for assisting a client in the management of their illness. No more than one collateral contact for any recipient shall be allowed as a billable service regardless of how many of their collaterals participate in the session. The total number of individuals in any group shall not exceed six.

ACT treatment services shall be reimbursed at the following rates: full; partial step-down; and Inpatient. In no instance shall a program bill more than one rate code during the same month for the same individual.

(1) Reimbursement shall be made at the full payment rate for services provided to active clients who receive a minimum of six face-to-face contacts in a month, up to three of which may be collateral contacts.

(2) Reimbursement shall be made at the partial step-down payment rate for services provided to active clients who receive a minimum of two, but fewer than six, face-to-face contacts in a month.

(3) Reimbursement for services to ACT clients who are admitted for treatment to an inpatient facility and are anticipated to be discharged within 180 days of admission shall be made in accordance with section 508.7 of this Part.

History

Amended New York State Register March 30, 2022/Volume XLIV, Issue 13, eff. 3/30/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.6 Audits

(a) ACT providers shall maintain the records which formed the basis of all statistical and financial reports requested by and submitted to the office for six years from the date on which the reports were submitted to the office, or longer if required by Federal law.

(b) All such records shall be subject to audit for six years from the date on which the reports were filed with the office or due, whichever is later.

(c) On-site audits or desk audits shall be conducted by the office at a time, place and in a manner determined by the office.

(d) The office may enter into agreements with other organizations or agencies having audit responsibilities to audit the financial and statistical records of any ACT provider.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.7 Inpatient settings

(a) In order for an individual to be considered an active client of an ACT program in an inpatient setting, he or she must be:

(1) admitted to a psychiatric unit of a hospital licensed under article 28 of the Public Health Law, or admitted to a residential treatment facility for children and youth;

(2) 21 years of age or less, or 65 years of age or older, who is receiving services at a State-operated psychiatric hospital or freestanding psychiatric hospital licensed solely pursuant to article 31 of the Mental Hygiene Law; or

(3) admitted to a hospital or other residential medical facility licensed pursuant to article 28 of the Public Health Law.

(b) For the purpose of discharge planning, reimbursement is permitted for up to five calendar months of service during an inpatient episode without regard to the duration of the inpatient episode as follows:

(1) In the month of admission and/or month of discharge full payment rate reimbursement is permitted for any month in which four or more community-based contacts combined with inpatient face-to-face contacts equals six or more total contacts in the month.

(2) In the month of admission and/or month of discharge stepdown/partial payment rate reimbursement is permitted when a minimum of two community-based contacts are provided in a month, or when a minimum of one community contact, combined with a minimum of one inpatient contact, is provided.

(3) Inpatient payment rate reimbursement is permitted when a minimum of two inpatient face-to-face contacts are provided in a month, regardless of the number of community contacts. Reimbursement for more than one contact per day during inpatient status is not permitted.

(c) Any episode of inpatient care is considered a continuous hospital or other medical facility stay if the client's discharge is followed by a readmission to a hospital on or before the tenth day following the date of discharge.

(d) For inpatient stays beyond the initial five months:

(1) the patient may be placed on inactive ACT status. The ACT Team should notify the local SPOA of the inactive status; and

(2) upon discharge from the inpatient setting, the patient may return to active status on the same ACT team for continuing community-based service. The ACT team must notify the local SPOA of the reactivated status.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.8 Assisted outpatient treatment (aot)

(a) ACT providers shall establish mechanisms to ensure priority access by individuals who are subject to an AOT order pursuant to section 9.60 of the Mental Hygiene Law.

(b) ACT providers shall cooperate with the office and the local governmental unit or their representatives to ensure priority access by individuals who are subject to an AOT order and assist in the development, review, and implementation of treatment plans.

(c) Prior to any such individual's discharge from an ACT program, the provider shall notify the director of the AOT program and assist in the determination of whether such individual is appropriate for case management services. If the individual is determined to be appropriate for such case management services, then the provider shall assist the director of the AOT program in arranging for such services.

(d) Any and all related information, reports, and data which may be requested by the office or the local governmental unit in connection with an individual who is also enrolled in an AOT program shall be furnished by the provider of services in accordance with applicable law.

(e) Any requests from persons or entities authorized pursuant to section 33.13 or 33.16, for clinical records regarding persons who are the subject of, or who are under consideration for, a petition for an order authorizing AOT, shall be given priority attention and prompt response in accordance with applicable law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 508.9 Behavioral health organizations

Providers shall cooperate with the designated regional behavioral health organizations and shall be authorized pursuant to Section 33.13 (d) of the Mental Hygiene Law to exchange clinical information concerning clients with such organizations. Information so exchanged shall be limited to the minimum necessary in light of the reason for the disclosure. Such information shall be kept confidential and any limitations on the release of such information imposed on the party giving such information shall apply to the party receiving such information.

Part 509 PREVENTION OF INFLUENZA TRANSMISSION

N.Y. Comp. Codes R. & Regs. Tit. 14 § 509.1 Background and intent

(a) Influenza is an unpredictable disease that can cause serious illnesses, death, and healthcare disruption during any given year. Recent influenza seasons in New York State have been worse than those experienced a decade ago.

(b) In response to this increased public health threat, New York must take active steps to prevent and control transmission of seasonal influenza. The seriousness of the continuing influenza threat and the failure of the health care system to achieve acceptable vaccination rates through voluntary programs necessitate further action.

(c) Although masks are not as effective as vaccination, evidence indicates that wearing a surgical or procedure mask will lessen transmission of influenza from patients experiencing respiratory symptoms. It is also known that persons incubating influenza may shed the influenza virus before they have noticeable symptoms of influenza. The Centers for Disease Control and Prevention (CDC) recommends that patients who may have an infectious respiratory illness wear a mask when not in isolation and that healthcare personnel wear a mask when in close contact with symptomatic patients. Further, the Infectious Disease Society of America recommends that healthcare personnel who are not vaccinated for influenza wear masks.

(d) Recently, the New York State Department of Health (DOH) adopted regulations at 10 NYCRR section 2.59 to require all unvaccinated personnel in certain health settings to wear surgical or procedure masks during the time when the Commissioner of Health determines that influenza is prevalent. Specifically, the DOH regulations apply to general hospitals, nursing homes, diagnostic and treatment centers, certified home health agencies, long term home health care programs, acquired immune deficiency syndrome (AIDS) home care programs, licensed home care service agencies, limited licensed home care service agencies and hospices (licensed by DOH under Public Health Law, articles 28, 36 and 40).

(e) It is critical for the Office of Mental Health to join in a statewide effort to reduce the morbidity and mortality of influenza, by combining efforts and pursuing a common path of prevention and intervention.

History

Adopted, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 509.2 Legal base

(a) Section 7.07 of the Mental Hygiene Law charges the Office of Mental Health with the responsibility for seeing that persons with mental illness are provided with care and treatment, and that such care, treatment and rehabilitation is of high quality and effectiveness.

(b) Section 7.09 of the Mental Hygiene Law gives 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 or her jurisdiction.

History

Adopted, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 509.3 Definitions

For the purposes of this Part:

(a) Facility shall mean:

(1) a psychiatric center established pursuant to section 7.17 of the Mental Hygiene Law; including all programs or services operated by, or under the auspices of, such psychiatric center;

(2) a hospital operated pursuant to Part 582 of this Title.

(b) Influenza season shall mean the period of time during which influenza is prevalent as determined by the Commissioner of Health.

(c) Influenza vaccine or vaccine shall mean a vaccine currently licensed for immunization and distribution in the United States by the Food and Drug Administration (FDA) for active immunization for the prevention of influenza disease caused by influenza virus(es) or authorized for such use by the FDA pursuant to an Emergency Use Authorization (EUA) or as an Emergency Investigational New Drug (EIND).

(d) Patient shall mean any person receiving services from a facility, as defined in this section, as well as any person presenting for admission to a facility.

(e) Personnel shall mean all persons employed or affiliated with a facility, as defined in this section, whether paid or unpaid, including but not limited to employees, members of the medical, nursing, and other treatment staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with influenza, they could potentially expose patients to the disease.

History

Adopted, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 509.4 Documentation Requirements

(a) All facilities shall determine and document which persons qualify as ''personnel'' under this Part.

(b) All facilities shall document the influenza vaccination status of all personnel for the current influenza season in a secure file separate from their personnel history folder. Documentation of vaccination must include:

(1) a document prepared by the licensed healthcare practitioner who administered the vaccine, indicating that one dose of influenza vaccine was administered, and specifying the vaccine formulation and the date of administration; or

(2) for personnel employed by a healthcare employer other than the facility in which he or she is providing services, an attestation by the employer that the employee(s) named in the attestation has been vaccinated against influenza for the current influenza season, and that the health care employer maintains documentation of vaccination of the employee(s), as described in paragraph (1) of this subdivision; or

(3) for student personnel, an attestation by the professional school that the student(s) named in the attestation has been vaccinated against influenza for the current influenza season, and that the school maintains documentation of the vaccination of the student(s) as described in paragraph (1) of this subdivision.

(c) During the influenza season, all facilities shall ensure that all personnel who have not been vaccinated against influenza for the current influenza season wear a surgical or procedure mask while in areas where patients are typically present, except that:

(1) when personnel provide services outside the facility, mask wear shall not be required by this section, provided that this paragraph shall not be interpreted as eliminating the requirement that personnel wear a mask pursuant to standard and transmission-based precautions not ad- dressed by this section;

(2) personnel required to wear a mask by this subdivision, but who provide speech therapy services, may remove the mask when necessary to deliver care, such as when modeling speech; and

(3) for any person who lip reads, personnel required to wear a mask by this subdivision may remove the mask when necessary for communication.

(d) Upon the request of the Office, a facility must report the number and percentage of personnel that have been vaccinated against influenza for the current influenza season.

(e) All facilities shall develop and implement a policy and procedure to ensure compliance with the provisions of this Part. The policy and procedure shall include, but is not limited to, the identification of those areas where unvaccinated personnel must wear a mask pursuant to subdivision (c) of this Section.

(f) Facilities shall supply surgical or procedure masks required by this section at no cost to personnel.

(g) Nothing in this Part shall be interpreted as prohibiting any facility from adopting policies that are more stringent than the requirements of this Part.

(h) For those facilities that are required to comply with 10 NYCRR Section 2.59, compliance with such Section shall be deemed compliance with this Part.

History

Adopted, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

Part 510 Public Access To Records Of The Office Of Mental Health

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.1 Background and intent

(a) The public's right to know the process of government decision making and access to documents and statistics leading to determinations is basic to our society. Therefore, it is the policy of the Office of Mental Health (OMH) to grant ready access to its records to the public, consistent with the Freedom of Information Law.

(b) This regulation sets forth criteria regarding the designation and duties of records access officers and procedures regarding requesting, granting, denying and appealing access to records.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.2 Legal base

(b) Article 6 of the Public Officers Law (Freedom of Information Law) establishes the criteria under which the public may access the records related to the process of governmental decision making.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.3 Applicability

(a) This Part applies to the process for accessing records from all facilities and administrative offices operated by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.4 Definitions

(a) Committee on Open Government means the entity created by the Freedom of Information Law to furnish guidelines and opinions regarding such law and to monitor its application.

(b) Record means any information kept, held, filed, produced or reproduced by, with or for any agency in any physical form whatsoever including, but not limited to reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.

(c) Trade secret means any material that may consist of, but shall not necessarily be limited to, any formula, pattern, process, procedure, plan, compound, devise, customer list, cost records or compilation of information which is used in one's business that is not published or divulged and which gives an advantage to competitors who do not know, use or have access to such data or information.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.5 Designation and responsibilities of records access officers

(a) The records access officer of the Office of Mental Health's (OMH) central office shall be a lawyer in the office of counsel, designated by the Commissioner. The address for the records access officer is 44 Holland Avenue, Albany, New York 12229. The records access officer of each OMH operated psychiatric center is the facility director or his or her designee, who may be contacted at the business address of the applicable psychiatric center.

(b) The records access officer is responsible for:

(1) maintaining a reasonably detailed current list, by subject matter, of records maintained by the organization;

(2) assisting the requester in identifying requested records, if necessary;

(3) determining the appropriateness of public access to requested records;

(4) providing documents to persons who have been granted access; and

(5) documenting denials of requests for access and maintaining a file of such denials.

History

Amended New York State Register August 26, 2015/Volume XXXVII, Issue 34, eff. 8/26/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.6 Request for access to records

(a) All requests to inspect or copy records which are subject to disclosure shall be made in writing and shall reasonably describe the records to which access is being sought. Such requests shall be directed to the appropriate records access officer.

(b) Persons requesting records which originated in any other State or Federal agency, but are currently in the possession of the office, shall be referred to the originating agency when there is a question concerning confidentiality requirements.

(1) make such record available to the person requesting access to the record pursuant to section 510.8 of this Part;

(2) deny the request, pursuant to section 510.9 of this Part; or

(3) provide a written acknowledgment of the receipt of the request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when the request will be granted or denied. If the records access officer determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within 20 business days from the date of the acknowledgment of the receipt of the request, the records access officer shall state, in writing, both the reason for the inability to grant the request within 20 business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Failure by the records access officer to conform to the provisions of this paragraph shall constitute a denial.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.7 Records containing trade secrets

(a) Submission of records containing secrets.

(1) A person acting pursuant to law or regulation who submits any information to the Office of Mental Health may, at the time of submission, request that the office except such information from disclosure under section 87 (2)(d) of the Public Officers Law. This section provides that an agency may deny access of records or portions thereof that are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the competitive position of the subject enterprise. Where the request itself contains information which if disclosed would defeat the purpose for which the exception is sought, such information shall be excepted from disclosure.

(2) The request for an exception shall be in writing and state the reasons why the information should be excepted from disclosure.

(3) The person submitting the information shall clearly identify those records or portions of records for which the exception is requested. This may be accomplished by separating and attaching to such records a cover sheet or other suitable form of notice, using such language as "trade secret" or "proprietary information."

(4) The person submitting the information may request an exception from disclosure for a limited period of time. If so, the person shall indicate that period of time when submitting the information.

(b) Safeguarding against unauthorized access to records containing trade secrets.

(1) Information submitted as provided in subdivision (a) of this section shall be excepted from disclosure and be maintained apart by the office from all other records until 15 days after the entitlement to such exception has been finally determined by the office or such further time as ordered by a court of competent jurisdiction.

(2) The appropriate office deputy commissioners or facility directors, or their designees, shall be responsible for the custody of such records.

(3) Each employee who has custody of records containing trade secrets shall take appropriate measures to safeguard such records and to protect against their unauthorized disclosure.

(4) Simple and effective devices to identify and maintain repositories for records containing trade secrets shall be used so that their security is maintained.

(1) On the initiative of the office at any time, or upon the request of any person for a record excepted from disclosure as provided herein, the office shall:

(i) inform the person who requested the exception of the office's intention to determine whether such exception should be granted or continued;

(ii) permit the person who requested the exception, within 10 business days of receipt of notification from the office, to submit a written statement of the necessity for the granting or continuation of such exception; and

(iii) within seven business days of receipt of such written statement, or within seven business days of the expiration of the period prescribed for submission of such statement, issue a written determination granting, continuing or terminating such exception and stating the reasons therefor. Copies of such determination shall be served upon the person, if any, requesting the record, the person who requested the exception, and the Committee on Open Government.

(2) The following factors are among those the office may consider in making a determination to grant or continue an exception from disclosure under section 87 (2)(d) of the Public Officers Law:

(i) any provisions of the Mental Hygiene Law or other law which authorize or restrict access to the records;

(ii) whether or not the records are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise which, if disclosed, would cause substantial injury to the competitive position of the commercial enterprise;

(iii) the written request for an exception from disclosure and the reasons stated therein;

(iv) the written statement, if any, of the necessity for the granting or continuation of the exception from disclosure;

(v) factors pertaining to determining whether or not a trade secret exists shall include, but not be limited to:

(a) the extent to which the information is known outside of the business of the person or entity submitting the information;

(b) the extent to which it is known by the person's or entity's employees and others involved in the business;

(d) the value of the information to the person or entity and to competitors;

(e) the amount of effort or money expended by the person or entity in developing the information; and

(f) the ease or difficulty with which the information can be properly acquired or duplicated by others;

(vi) factors pertaining to determining whether disclosure would cause substantial injury to the competitive position of the person or entity shall include but not be limited to:

(a) the commercial value of the information to competitors;

(b) the damage which disclosure could cause to the submitting person or entity; and

(d) Appeal of action by the Office of Mental Health.

(1) A denial of an exception from disclosure under subdivision (a) of this section may be appealed by the person who requested the exception, and a denial of access to the record may be appealed by the person requesting the record in accordance with this section.

(i) Within seven business days of receipt of written notice denying the request, the person may file a written appeal from the determination of the office pursuant to section 510.10 of this Part.

(ii) The appeal shall be determined within 10 business days of the receipt of the appeal. Written notice of the determination shall be served upon the person, if any, requesting the record, the person who requested the exception, and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.

(2) A proceeding to review a determination adverse to a person requesting an exception from disclosure pursuant to this subdivision may be commenced pursuant to article 78 of the Civil Practice Law and Rules. Such proceeding must be commenced within 15 days of the service of the written notice containing the adverse determination provided for in subparagraph (1)(ii) of this subdivision.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.8 Granting of access to records

(a) If access to a record is approved, the records access officer shall so notify the requestor and initiate a search for the record. If the record cannot be located after a diligent search, the records access officer shall so notify the requestor.

(b) The records access officer may delete identifying details, which if not expunged would cause an unwarranted invasion of personal privacy, from the record before inspection or copying.

(c) Records shall be available for inspection and copying by the public at the location(s) designated by the records access officer on every day that his or her office is open for the transaction of administrative business, between the hours of 9 a.m. and 4 p.m.

(d) Persons granted access to records may inspect the original records, without charge, at a time when his or her use of the record does not interfere with the normal functioning of the office. The requestor shall not remove original records from the office in which they are kept without permission. If photocopies of the records are requested, fees may be charged, not to exceed 25 cents per single-sided page not in excess of nine by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is prescribed by statute. At the discretion of the records access officer, a fee may be waived or reduced. Upon request, the records access officer shall certify in writing that photocopies provided are true copies of the original record.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.9 Denial of access to records

(a) When a request for access to records is denied, such denial shall be in writing. Such denial shall explain the reason for the denial, the right to appeal the decision and the process for appeal as provided in section 510.10 of this Part.

(b) A request for a record may be denied for any of the following reasons:

(1) the record is exempted from disclosure by State or Federal law;

(2) the record, if disclosed, would constitute an unwarranted invasion of personal privacy, under the provisions of Public Officers Law section 89(2) including, but not limited to:

(i) disclosure of employment, medical or credit histories, or personal references of applicants for employment;

(ii) disclosure of clinical records or information tending to identify recipients;

(iii) release of names and addresses if the list would be used for commercial or fund raising purposes;

(iv) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject of the record, and such information is not relevant to the work of the agency requesting or maintaining the record; or

(v) disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency;

(3) disclosure of the record would impair present or imminent contract awards or collective bargaining negotiations;

(4) the record contains trade secrets, or has been submitted by a commercial enterprise or derived from information obtained from a commercial enterprise, and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;

(5) the record was compiled for law enforcement purposes and disclosure would:

(i) interfere with law enforcement investigations or judicial proceedings;

(ii) deprive a person of his or her right to a fair trial or impartial adjudication;

(iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or

(iv) reveal non-routine criminal investigative techniques or procedures;

(6) disclosure of the record would endanger the life or safety of any person;

(7) the record consists of interagency or intra-agency materials, which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits, including but not limited to audits performed by the Comptroller and the Federal government;

(8) the record consists of examination questions or answers which are requested prior to the final administration of such questions;

(9) the record consists of computer access codes; or

(10) the record consists of photographs, microphotographs, videotape or other recorded images prepared under authority of section 1111-a of the Vehicle and Traffic Law.

(c) Disclosure of a record generally shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraph (b)(2) of this section when:

(1) identifying details are deleted;

(2) the subject of the record provides written consent to disclosure; or

(3) upon presenting reasonable proof of identity, a person seeks access to records pertaining to him or her.

(d) Nothing in this Part shall require the disclosure of:

(1) the home address of a present or former officer or employee or a retiree of a public employee's retirement system, unless such disclosure is to recognized employee organizations as provided in section 89(7) of the Public Officer's Law;

(2) the name or home address of a beneficiary of a public employee's retirement system, or an applicant for appointment to public employment;

(3) records prohibited from disclosure pursuant to the Personal Privacy Protection Law (article 6-A of the Public Officers Law); or

(4) records prohibited from disclosure pursuant to section 33.13 of the Mental Hygiene Law or any other provision of the State or Federal law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 510.10 Appeal of denial of access to records

(a) Any person denied access to a record pursuant to section 510.9 of this Part has the right to appeal such decision. Such appeal shall be submitted in writing, within 30 days of receipt of the denial, to the commissioner or his or her designee. The written appeal shall identify:

(1) the date of the request for access to the record;

(2) the name and business address of the records access officer;

(3) the record to which the appellant was denied access; and

(4) the name and return address of the appellant.

(b) Within 10 business days of receipt of an appeal, the commissioner or his or her designee shall:

(1) provide access to the record sought; or

(2) fully explain in writing to the person requesting the record the reasons for further denial.

(c) Upon receipt of transmittal by the Office of Mental Health, copies of all appeals and related determinations shall be forwarded to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231.

(d) Failure by the Office of Mental Health to conform to the provisions of this section shall constitute a denial of appeal.

Part 511 Early Periodic Screening, Diagnostic and Treatment Services for Children

N.Y. Comp. Codes R. & Regs. tit. 14, ch. XIII, pt. 511, subpt. 511-1 N.Y. Comp. Codes R. & Regs. tit. 14, ch. XIII, pt. 511, subpt. 511-1

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-1.1 Background and Intent

(a) Federal law requires state Medicaid programs to offer Early and Periodic Screening, Diagnostic and Treatment to all Medicaid-eligible children under age 21. Commonly referred to as "EPSDT," these services are designed to support childhood growth and development to ensure that children in low income families receive the comprehensive and preventive health and behavioral health services they need. EPSDT services include appropriate preventive, dental, health, behavioral health, developmental and specialty services.

(b) Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service that is medically necessary "to correct or ameliorate a defect, physical or mental illness, or a condition identified by screening" and which are recommended by a Licensed Practitioner of the Healing Arts. Thus, EPSDT requires states not only to screen and diagnose health and mental health illnesses or conditions in low income children, but they must ensure children are provided treatment as well.

(c) New York State has obtained an amendment to its Medicaid State Plan that authorizes the provision of six new children's behavioral health and health services under the EPSDT benefit. When recommended by a Licensed Practitioner of the Healing Arts, these six services will be made available to any child eligible for Medicaid who meets relevant medical necessity criteria, and include:

(1) Crisis Intervention Services: services designed to interrupt and/or ameliorate a behavioral health crisis through the provision of support to an individual who may be experiencing a mental health crisis, and subsequently connecting such individual to appropriate resources. For purposes of this Part, provision of this services does not connote examination, diagnosis, care, treatment, rehabilitation, or training of a person with mental illness and thus does not constitute a nonresidential service requiring licensure under Mental Hygiene Law Section 31.02;

(2) Community Psychiatric Supports & Treatment: interventions intended to achieve identified goals or objectives as set forth in a treatment/ recovery plan;

(3) Family Peer Support Services: formal and informal services provided to families of a child experiencing social, emotional, developmental, medical, substance use, and/or behavioral challenges in their home, school, placement, and/or community;

(4) Youth Peer Support and Training: formal and informal services and supports to ensure engagement and active participation of youth in the treatment planning and implementation process;

(5) Other Licensed Practitioners: service provided by a non-physician behavioral health practitioner operating within a licensed children's mental health agency, who is licensed in New York and is operating within a scope of practice defined in New York State law in any setting permissible under such law, including community based settings; and

(6) Psychosocial Rehabilitation Services: task-oriented services designed to compensate for or eliminate functional deficits and interpersonal and/or behavioral health barriers associated with behavioral health needs.

(d) This Part is intended to establish standards applicable to providers of mental health services licensed or operated by the Office of Mental Health that wish to be designated, or have been designated, as a provider of EPSDT, Other Licensed Practitioners, and Community Psychiatric Supports and Treatment Services.

(e) This Part also establishes standards applicable to non-licensed providers of mental health services that receive funding or have a contract from the Office that wish to be designated, or have been designated, as a provider of any of the following EPSDT services: Crisis Intervention Services, Family Peer Support Services, or Youth Peer Support and Training and Psychosocial Rehabilitation Services.

History

Renumbered from 511.1 New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-1.2 Legal base

(a) Section 7.07 (a) of the Mental Hygiene Law charges the Commissioner of Mental Health with the responsibility for assuring the development of comprehensive plans, programs, and services in areas of research, prevention, care, treatment, rehabilitation, education, and training of persons with mental illness.

(b) Section 7.07 (c) of the Mental Hygiene Law gives the Commissioner of Mental Health the responsibility for seeing that persons with mental illness are provided with care and treatment, and that such care, treatment, and rehabilitation is of high quality and effectiveness.

(c) Section 7.09 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(d) 42 U.S.C. § 1396d(r)(5) requires States to provide all medically necessary services that could be available under Medicaid to correct or ameliorate physical and mental illnesses and conditions that are detected in Medicaid-eligible children.

(e) 18 NYCRR § 505.38 establishes standards for the designation of qualified providers by the Department of Health to deliver EPSDT services under the New York State Medicaid program.

History

Renumbered from 511.2 New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-1.3 Applicability

(a) The provisions of this Part are applicable to all providers of mental health services licensed or operated by the Office of Mental Health that are seeking or have obtained designation from the Office to offer EPSDT, Other Licensed Practitioner, and Community Psychiatric Supports & Treatment Services.

(b) This Part applies to non-licensed providers of mental health services that received funding or have a contract from the Office that are seeking or have obtained designation from the Office to offer EPSDT Crisis Intervention Services, Family Peer Support Services, Youth Peer Support and Training, and Psychosocial Rehabilitation Services.

History

Renumbered from 511.3 New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-1.4 Definitions

For purposes of this Part:

(a) Child means a person no more than 21 years of age.

(b) Crisis Event means an acute psychological/emotional change a child or family member is experiencing which results in a marked increase in personal distress and which exceeds the abilities and the resources of those involved (e.g., provider, family member) to effectively resolve it.

(c) Cultural and linguistic competence means the ability of health care providers and health care organizations to understand and respond effectively to the cultural and language needs brought by a patient to a health care or behavioral health care encounter.

(d) EPSDT means the Federal Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit, which is a primary component of New York State's Medicaid program for children and adolescents. It affords a comprehensive array of preventive health care and treatments for Medicaid recipients from birth up until age 21 years.

(e) Family means a child's primary caregiving unit, and is inclusive of a wide diversity of primary caregiving units such as birth, foster, adoptive, grandparents, siblings, other kinship caregivers, or a self-created unit of people with significant attachment to one another.

(f) Licensed Practitioner of the Healing Arts (LPHA) means the following professional staff:

(1) Marriage and Family Therapist, which means an individual who is currently licensed as a Marriage and Family Therapist by the New York State Education Department;

(2) Mental Health Counselor, which means an individual who is currently licensed as a Mental Health Counselor by the New York State Education Department;

(3) Nurse Practitioner, which means an individual who is currently certified as a Nurse Practitioner by the New York State Education Department;

(4) Nurse Practitioner in psychiatry, which means an individual who is currently certified as a Psychiatric Nurse Practitioner by the New York State Education Department. For purposes of this Part, nurse practitioner in psychiatry shall have the same meaning as psychiatric nurse practitioner, as defined by the New York State Education Department;

(5) Physician, which means an individual who is currently licensed as a Physician by the New York State Education Department or possesses a permit from the New York State Education Department;

(6) Physician's Assistant, which means an individual who is currently registered as a Physician Assistant or a Specialist's Assistant by the New York State Education Department;

(7) Psychiatrist, which means an individual who is currently licensed as a Physician by the New York State Education Department and who is certified by, or eligible to be certified by, the American Board of Psychiatry and Neurology;

(8) Psychoanalyst, which means an individual who is currently licensed as a Psychoanalyst by the New York State Education Department;

(9) Psychologist, which means an individual who is currently licensed as a Psychologist by the New York State Education Department;

(10) Registered Professional Nurse, which means an individual who is currently licensed as a Registered Professional Nurse by the New York State Education Department; and

(11) Social Worker, which means an individual who is currently licensed as a Master Social Worker or Clinical Social Worker by the New York State Education Department.

(g) Office means the Office of Mental Health.

(h) State Agencies means and includes the New York State Office of Mental Health, the New York State Department of Health, the New York State Office of Children and Family Services, and the New York State Office of Alcoholism and Substance Abuse Services.

History

Renumbered from 511.4 New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-1.5 Designation Process

(a) Providers of mental health services must receive prior approval by written designation of the Office to provide any or all of the following EPSDT services:

(1) Crisis Intervention services are available to a child or a member of his/her family who is experiencing a behavioral health crisis event, and are designed to:

(i) interrupt and/or ameliorate the crisis event;

(ii) include an assessment that is culturally and linguistically competent;

(iii) result in immediate crisis resolution and de-escalation; and

(iv) result in the development of a crisis plan.

(2) Community Psychiatric Support and Treatment services, which include interventions intended to achieve identified goals or objectives as set forth in a treatment/recovery plan.

(3) Family Peer Support services, which include formal and informal services to families of a child experiencing social, emotional, developmental, medical, substance use, and/or behavioral challenges in their home, school, placement, and/or community.

(4) Other Licensed Practitioner services, which include services provided by the following professionals, operating within a licensed children's mental health agency, if currently licensed by State of New York to prescribe, diagnose, and/or treat individuals with a physical, mental illness, substance use disorder, or functional limitations at issue, provided such professionals are operating within their respective scope of practice and in a setting permitted under New York State law, including community settings:

(i) Licensed Psychoanalyst;

(ii) Licensed Clinical Social Worker;

(iii) Licensed Marriage & Family Therapist;

(iv) Licensed Mental Health Counselor; or

(v) Licensed Master Social Worker under the supervision or direction of a Licensed Clinical Social Worker, a Licensed Psychologist, or a Psychiatrist.

(5) Psychosocial Rehabilitation services, which are task-oriented services designed to restore, compensate for, or eliminate functional deficits and interpersonal and/or behavioral health barriers associated with behavioral health needs.

(6) Youth Peer Support and Training services are formal and informal services and supports to ensure engagement and active participation of youth in the treatment planning and implementation process.

(b) Requests for designation to provide EPSDT services shall be made in a form and format established by the Office.

(1) be enrolled in the Medicaid program prior to commencing service delivery;

(2) have a demonstrated history of compliance with applicable federal and state laws and regulations governing the provision of mental health services; and

(3) satisfy requisite criteria identified in the New York State Plan Amendment Designation Application and the standards of care identified in the Children's Health and Behavioral Health Services Transformation Medicaid State Plan Provider Manual.

(d) The Office shall provide its designation in writing, which shall identify the services such designation authorizes the provider to deliver. The provider of services must retain a copy of the approval document and shall make it available for inspection upon request of the Office.

(e) Failure to adhere to the requirements set forth in this Part, or any other applicable laws or regulations relevant to the provision of health or behavioral health services, may be grounds for revocation of designation. In the event that the Office determines that designation must be revoked, it will notify the provider of its decision in writing. The provider may request an informal administrative review of such decision.

(1) The provider must request such review in writing within 14 days of the date it receives notice of revocation of designation to provide EPSDT services to the Commissioner or designee. The request shall state specific reasons why the provider considers the revocation of approval incorrect and shall be accompanied by any supporting evidence or arguments.

(2) The Commissioner or designee shall notify the provider, in writing, of the results of the informal administrative review within 14 days of receipt of the request for review. Failure of the Commissioner or designee to respond within that time shall be considered confirmation of the revocation.

(3) The Commissioner's determination after informal administrative review shall be final and not subject to further administrative review.

(4) A provider whose designation has been revoked pursuant to this Section may be considered again for designation at the discretion of the Office, in consultation with the State Agencies.

History

Renumbered from 511.5 New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-1.6 Guidelines

The Office shall develop guidelines to assist providers in complying with the provisions of this Part and in delivering EPSDT services. The Office shall post such guidelines on its public website.

History

Renumbered from 511.6 New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-1.7 Incorporation by reference

The provisions of the Children's Health and Behavioral Health Services Transformation Medicaid State Plan Provider Manual which have been incorporated by reference in this Part, have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the document entitled: Children's Health and Behavioral Health Services Transformation Medicaid State Plan Provider Manual, published in March, 2016, and any subsequent updates. This document incorporated by reference may be examined at the Office of the Department of State, 99 Washington Ave, Albany, NY 12231 or obtained from the Office of Mental Health Records Access Officer, 44 Holland Avenue; Albany, NY 12229.

History

Renumbered from 511.7 New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

Children's Mental Health Rehabilitation Services Program Children's Mental Health Rehabilitation Services Program

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.1 Background and intent

(a) The purpose of this Part is to establish certification standards for the operation of Children's Mental Health Rehabilitation Services (CMHRS) programs.

(b) The goals of CMHRS programs are to assist children and their families with significant mental health and behavioral challenges function successfully within their homes and community, ameliorate mental health symptoms and prevent the progression of mental health conditions by providing a coordinated array of clinical treatment and rehabilitative and support services.

(c) CMHRS are primarily provided in nontraditional settings, including in the home or community settings, to children and their families for whom a flexible approach to service provision is needed to facilitate engagement or therapeutic benefit.

(d) CMHRS shall be offered individually or as a comprehensive array of services provided in an integrated and coordinated manner. CMHRS programs shall establish protocols and procedures for the integration of service provision for children, whether all services are provided directly or through a formal agreement.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.2 Legal base

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health ("the Commissioner") 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 experiencing symptoms of mental illness pursuant to an operating certificate.

(b) Subdivision (b) of section 43.02 of the Mental Hygiene Law gives the Commissioner authority to request from operators of facilities certified by the Office of Mental Health such financial, statistical and program information as the Commissioner may determine to be necessary.

(c) Sections 31.07, 31.09, 31.13, and 31.19 of the Mental Hygiene Law authorizes the Commissioner to examine and inspect such programs to determine their suitability and proper operation. Section 31.16 authorizes the Commissioner to suspend, revoke or limit any operating certificate, under certain circumstances.

(d) Section 31.11 of the Mental Hygiene Law requires every holder of an operating certificate to assist the Office of Mental Health in carrying out its regulatory functions by cooperating with the Commissioner in any inspection or investigation, permitting such commissioner to inspect its facility, books and records, including recipients' records, and making such reports, uniform and otherwise, as are required by the commissioner.

(e) Sections 364 and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.

(f) Section 364-j of the Social Services Law requires the establishment of managed care programs throughout the State and provides for the provision of special care services to enrollees in Medicaid managed care programs who require such services.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.3 Applicability

This Part shall apply to any provider that proposes to operate a CMHRS program of services that must be certified by the Office of Mental Health.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.4 Definitions

For Purposes of this Part:

(a) Child means a person no more than 21 years of age.

(b) Collateral means a person who is a member of the child's family or household, or other individual who regularly interacts with the recipient and is directly affected by or has the capability of affecting his or her condition, and is identified in the treatment plan as having a role in treatment and/or is necessary for participation in the evaluation and assessment of the recipient prior to admission.

(d) Crisis episode means an acute psychological/emotional change a child or family member is experiencing which results in a marked increase in personal distress and which exceeds the abilities and the resources of those involved (e.g., provider, family member) to effectively resolve it.

(e) EPSDT means the Federal Early and Periodic Screening, Diagnostic, and Treatment benefit, which is a primary component of New York State's Medicaid program for children and adolescents. It affords a comprehensive array of preventive health care and treatments for Medicaid recipients from birth up until age 21 years.

(f) Family means a child's primary caregiving unit, and is inclusive of a wide diversity of primary caregiving units such as birth, foster, adoptive, grandparents, siblings, other kinship caregivers, or a self-created unit of people with significant attachment to one another.

(g) Licensed Practitioner of the Healing Arts (LPHA) means the following professional staff:

(1) Licensed Creative Arts Therapist operating within their scope of practice defined by the New York State Education Department;

(2) Licensed Marriage and Family Therapist operating within their scope of practice defined by the New York State Education Department;

(3) Licensed Mental Health Counselor operating within their scope of practice defined by the New York State Education Department;

(4) Licensed Nurse Practitioner operating within their scope of practice defined by the New York State Education Department;

(5) Licensed Nurse Practitioner in psychiatry certified as a psychiatric nurse practitioner by the New York State Education Department. For purposes of this Part, nurse practitioner in psychiatry shall have the same meaning as psychiatric nurse practitioner, as defined by the New York State Education Department;

(6) Licensed Physician operating within their scope of practice defined by the New York State Education Department or possesses a permit from the New York State Education Department;

(7) Licensed Physician's Assistant operating within their scope of practice defined by the New York State Education Department;

(8) Licensed Psychiatrist operating within their scope of practice defined by the New York State Education Department and who is certified by, or eligible to be certified by, the American Board of Psychiatry and Neurology;

(9) Licensed Psychoanalyst operating within their scope of practice defined by the New York State Education Department;

(10) Licensed Psychologist operating within their scope of practice defined by the New York State Education Department;

(11) Licensed Registered Professional Nurse operating within their scope of practice defined by the New York State Education Department; and

(12) Licensed Social Worker as a master social worker or clinical social worker, operating within their scope of practice defined by the New York State Education Department

(h) Medical Necessity means that the medical, dental, and remedial care, services, and supplies are necessary to prevent, diagnose, correct, or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with such person's capacity for normal activity, or threaten some significant handicap and which are furnished an eligible person in accordance with state law.

(i) 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 such an extent that the person afflicted requires care, treatment and rehabilitation.

(j) Non-physician Licensed Behavioral Health Practitioner (NP-LBHP) means the following practitioners licensed to practice:

(1) Licensed Psychoanalyst operating within their scope of practice defined by the New York State Education Department;

(2) Licensed Clinical Social Worker operating within their scope of practice defined by the New York State Education Department.

(3) Licensed Marriage and Family Therapist operating within their scope of practice defined by the New York State Education Department;

(4) Licensed Mental Health Counselor operating within their scope of practice defined by the New York State Education Department;

(5) Licensed Master Social Worker operating within their scope of practice defined by the New York State Education Department and providing services under the supervision of a Licensed Clinical Social Worker, Licensed Psychologist, or Psychiatrist.

(k) Office means the Office of Mental Health.

(l) Provider of Service is the entity that is legally responsible for the operation of a program. Such entity may be an individual, partnership, association, limited liability corporation, or corporation

(m) Rehabilitative Services means therapeutic interventions and services intended to help a child maintain, restore, or improve developmentally-appropriate skills and functional abilities necessary for daily living, including skills related to communication, that have been lost or impaired due to a child's disability.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.5 Service Categories and Requirements

(a) CMHRS programs shall be responsible for assuring the delivery of the following services for children deemed eligible for receipt: Other Licensed Practitioner, Community Psychiatric Supports and Treatment, Psychosocial Rehabilitation, Family Peer Support Services, and Youth Peer Support and Training.

(b) Each of the following services must be offered directly by CMHRS programs:

(1) Other Licensed Practitioner (OLP) services are clinical services provided by Non-Physician Licensed Behavioral Health Practitioners (NP-LBHP) as defined in this Part. OLP services include assessment, treatment planning, psychotherapy and crisis intervention activities to address symptoms of mental illness in children for whom disorders have not yet been diagnosed, as well as for children with an existing diagnosis. OLP services, including assessment and treatment planning for the provision of psychotherapy, may be provided independently by any NP-LBHP authorized by New York State law to provide psychotherapy.

(2) Community Psychiatric Support and Treatment (CPST) services are goal-directed supports and solution-focused interventions intended to achieve identified goals or objectives as set forth in a treatment plan. CPST is designed to provide community-based services to children/youth and families who may have difficulty engaging in formal office settings, but can benefit from community based rehabilitative services. CPST is a comprehensive service that is supportive in nature in order to educate and assist families regarding mental health challenges and barriers, and includes Intensive Interventions, Crisis Avoidance, Intermediate Term Crisis Management, Strengths-Based Service Planning, Rehabilitative Psychoeducation, and Rehabilitative Supports.

(c) Each of the following services shall be offered by CMHRS programs, either directly or through an agreement with a designated provider:

(1) Psychosocial Rehabilitation (PSR) is a skill building service to restore, rehabilitate, and support a child's developmentally appropriate functioning to enhance community integration. PSR must include assisting the child to develop and apply skills in natural settings. PSR assists youth to implement interventions on their treatment plan to compensate for, or eliminate, functional deficits associated with their mental health condition(s).

(2) Family Peer Support Services (FPSS) are activities and supports provided by NYS Credentialed Family Peer Advocates (FPA) to families for the benefit of a child experiencing mental health challenges in their home, and/or community. FPSS assists with developing and linking with formal and informal supports; assisting in the development of goals; serving as an advocate, mentor, and teaching skills necessary to improve coping abilities for the benefit of the child.

(3) Youth Peer Support and Training (YPST) services are provided by NYS Credentialed Youth Peer Advocates (YPA) to children who are experiencing mental health challenges in their home, and/or community. YPST provides training and support necessary to ensure engagement and active participation of the child in the treatment planning process and with the ongoing implementation and reinforcement of skills through activities including, but not limited to: skill building, coaching, transition support, self-advocacy, empowerment and connection to community resources.

(d) CMHRS program providers shall deliver services in accordance with the Medicaid State Plan Children and Family Treatment and Support Services Provider Manual for Children's Behavioral Health Early and Periodic Screening and Diagnostic Treatment (EPSDT) Services in addition to guidance issued by the Office.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.6 Certification

(a) A provider of service intending to operate a CMHRS program must obtain an initial operating certificate issued by the Office in accordance with this Part. Renewals of such operating certificates shall be issued for terms of up to three years.

(b) Designated providers of FPSS, YPST and PSR who are not providing OLP and CPST do not require licensure under this Part.

(c) Each CMHRS program shall be authorized by an operating certificate. In addition, if a program is operating from multiple sites, each site shall be authorized by a discrete operating certificate. For each site, the operating certificate shall specify:

(1) the CMHRS services to be provided;

(2) the location of the program's site;

(3) the hours of operation of the program;

(4) the program's capacity; and

(5) the term of the operating certificate.

(d) The Office of Mental Health shall be notified of any desired changes to the initial operating certificate issued pursuant to subdivision (a) of this section.

(e) An operating certificate may be limited, suspended or revoked by the Office pursuant to Part 573 of this Title. The operating certificate is the property of the Office and shall be returned to the Office if revoked.

(f) The Commissioner may reduce a program's capacity when it is determined that such program is not providing services at a reasonable level or is not providing reasonable access to services in accordance with section of this Part.

(g) The provider of service shall frame and display the operating certificate within the program site in a conspicuous place that is readily accessible to the public.

(h) The Commissioner is authorized to make inspections and examine all records of CMHRS programs. Such examination may include, but is not limited to, any medical, service (quality assurance), financial or contractual record. The provider of service shall cooperate with the Office during any such inspection or examination.

(i) An operating certificate pursuant to this Part shall not be issued in the absence of an NYS Provider Designation Approval and OMH Authorization developed in accordance with section 511.5 of this Part.

(j) Upon a determination that a provider of service is in violation of this Part or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate and designation or impose fines in accordance with Mental Hygiene Law, section 31.16 and Parts 573 and 503 of this Title.

(k) Nothing in this section shall limit or preclude the commissioner from taking whatever immediate measures may be necessary, including the exercise of her authority under Mental Hygiene Law, sections 31.16(b) and 31.28, in the event that a child's health or safety is in imminent danger or there exists any condition or practice which poses imminent danger to the health or safety of any recipient or the public.

(l) Each provider of services shall comply with the standards for the administration of audits pursuant Part 552 of this Title.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.7 Program Operations

(a) Admission

(1) To be eligible for admission to the CMHRS program, an individual must meet medical necessity criteria as outlined in the Medicaid State Plan Children and Family Treatment and Support Services Provider Manual for Children's Behavioral Health Early and Periodic Screening and Diagnostic Treatment (EPSDT) Services. Such criteria require that the individual be:

(i) under the age of 21;

(ii) exhibiting symptoms of mental illness or have a mental health diagnosis consistent or corresponding with the current edition of the DSM; and

(iii) recommended for admission by a licensed practitioner of the healing arts (LPHA).

(2) Upon a decision to admit a child to a CMHRS program, documentation shall be written to include the following:

(i) recommendation for service(s) from a LPHA that is signed and dated and includes an explanation of the medical necessity for the service based on a assessment of needs;

(ii) primary service-related needs and service components to meet those needs;

(iii) admission diagnosis, if applicable; and

(iv) signature of a CMHRS staff.

(3) When admission is not indicated, a notation shall be made of the following:

(i) the reason for not admitting the individual;

(ii) any referrals made to other programs or services; and

(iii) notification to the referral source or recommending LPHA of the determination no to admit and of any referrals made to other programs or services.

(4) Admission criteria must conform to applicable state and federal law governing non-discrimination. Admission criteria shall not exclude a child because of past histories of incarceration or substance abuse. A provider of service shall not deny access to services by an otherwise appropriate child solely on the basis of multiple diagnoses or a diagnosis of HIV infection, AIDS, or AIDS-related complex.

(5) The program's admission process, including any criteria governing participation in the program, shall be clearly described and available for review by the child, their family or other collaterals.

(6) Providers of service shall not use coercion in regard to program admission or discharge, referrals to other programs, or the level of service provision, provided that nothing in this paragraph shall be interpreted to affect or otherwise impact the delivery of services to a child under a court order issued pursuant to section 9.60 of the Mental Hygiene Law.

(b) Staffing

(1) A provider of service shall continuously have an adequate number and appropriate mix of staff to carry out the objectives and to assure the outcomes of the program. The provider shall have a staffing plan with the appropriate qualified staff to meet the needs of population served.

(2) Agency must maintain documentation of staff qualifications, including training, clinical experience with children diagnosed with or experiencing symptoms of a mental health disorder.

(3) Agency must provide regular supervision. Such supervision shall address quality of care provided and ongoing staff development.

(4) Agency must maintain an adequate and appropriate number of qualified staff in proportion to the number of children served.

(5) Staffing shall be provided in accordance with required qualifications outlined in the Medicaid State Plan Children and Family Treatment and Support Services Provider Manual for Children's Behavioral Health Early and Periodic Screening and Diagnostic Treatment (EPSDT) Services.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.8 Treatment Planning

(a) Treatment planning shall be an ongoing and individualized process to ensure the services included within the treatment plan are medically necessary and to track the child's progress towards stated goals and objectives. The treatment plan shall be developed and updated in collaboration with the child and family in accordance with and individualized to the unique needs, goals and preferences of the child and the child's family.

(b) The treatment plan for a child shall be developed by the CMHRS program. For any rehabilitative service(s) provided pursuant to formal agreement with a designated provider, the development and ongoing review of the treatment plan shall include regular collaboration and coordination in accordance with protocols and procedures outlined in such agreement.

(1) The child's mental health diagnosis or symptoms of a mental illness exhibited by the child; or a notation that the diagnosis may be found in a specific assessment document in the child's case record;

(2) The child's needs and strengths;

(3) The child's treatment goals and objectives and the specific services, service components or activities necessary to accomplish those goals and objectives, as well as their projected frequency and duration;

(4) The name and title of the staff providing the specific services; and

(5) Criteria for determining when the child should be discharged from the services.

(d) Treatment plans shall be completed no later than 30 days after admission. The treatment plan for a child receiving services reimbursed by Medicaid through a managed care plan or on a fee-for-service basis shall be signed by licensed practitioner and shall include a projected schedule for service delivery and the projected frequency and duration of each type of planned therapeutic session or encounter.

(e) The child and family's participation in treatment planning shall be documented by the signature of the child or the signature of the person who has legal authority to consent to health care on behalf of the child.

(1) Reasons for non-participation by the individual are documented in the treatment plan.

(2) The child's family and/or collaterals may participate as appropriate in the development of the treatment plan. Collaterals participating in the development of the treatment plan shall be specifically identified in the plan.

(f) Treatment plans shall be reviewed and updated as necessary based upon the child's progress, changes in circumstances, the effectiveness of services, or other appropriate considerations. The periodic review of the treatment plan shall include the following:

(1) assessment of the progress of the child regarding the mutually agreed upon goals in the treatment plan;

(2) adjustment of goals and treatment objectives, time periods for achievement, intervention strategies or initiation of discharge planning, as appropriate;

(3) recommendation/inclusion of additional or other services such as other rehabilitative or support services within CMHRS, where appropriate; and

(4) the signature of licensed practitioner within his/her scope of practice, as defined by NYS State Education Law, involved in or recommending the treatment.

(g) For services provided to a child enrolled in a managed care plan which is certified by the Commissioner of the Department of Health or commercial insurance plan which is certified or approved by the Superintendent of the Insurance Department, treatment plans may be reviewed pursuant to such other plan requirement as shall apply.

(h) Progress notes shall be recorded and signed by the staff member(s) who provided services to the child upon each occasion of service. Progress notes shall include, at a minimum:

(1) the date and duration of each service provided;

(2) a summary of the service(s) provided and modality;

(3) a description of the progress made toward the child's goals;

(4) identification of any necessary changes to the elements of the child's treatment plan;

(5) the location where the service was provided, whether collaterals were seen;

(6) the name and title of the staff member providing each service; and

(7) A progress note must also be completed for any significant event and/or unexpected incident.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.9 Case Records

(a) The CMHRS Program shall maintain a case record for each child admitted and receiving CMHRS services provided directly and/ or pursuant to formal agreement with a designated provider. In the case of agreements between a CMHRS program and designated provider, the designated provider may also maintain a separate case record for the purposes of quality assurance, monitoring and billing.

(b) The CMHRS program shall ensure proper exchange of information between providers to facilitate coordination of care.

(c) There shall be a complete case record maintained for each child admitted to the program. Such case record shall be maintained in accordance with recognized and acceptable principles of recordkeeping as follows:

(1) Case record entries shall be legible and non-erasable;

(2) Electronic records which use accepted mechanisms for clinician signatures and are maintained in a secure manner, may be utilized. Such records may be kept in lieu of a hard copy case record;

(3) Case records shall be periodically reviewed for quality and completeness; and

(4) All entries in case records shall be dated and signed by appropriate staff.

(d) The case record shall be available to all staff of the CMHRS program who are participating in the treatment of the child and shall include the following information:

(1) Child identifying information and history;

(2) Diagnosis; or symptoms of a mental illness exhibited by the child;

(3) Recommendation for service(s) from a LPHA based on assessment of the child's mental health needs;

(4) Reports obtained of any mental and physical diagnostic exams, assessments, tests, and consultations;

(5) The treatment plan and crisis management plan, if applicable;

(6) Referrals to other programs and services;

(7) Consent forms;

(8) Record and date of contacts with the child, the type of service provided, and the duration of contact;

(9) Record and date of all contacts with collateral providers for coordination of care;

(10) Dated progress notes which relate to goals and objectives of treatment;

(11) Dated progress notes which relate to significant events and/or untoward incidents;

(12) Periodic treatment plan reviews;

(13) Discharge plan; and

(14) Discharge Summary within three business days of discharge.

(i) The discharge summary shall be transmitted to the receiving program, where applicable, prior to the arrival of the child, or within two weeks, whichever comes first.

(ii) When circumstances interfere with a timely transmittal of the discharge summary, notation shall be made in the record of the reason for delay. In such circumstances, a copy of all clinical documentation shall be forwarded to the receiving program, as appropriate, prior to the arrival of the child.

(iii) When a child is transferred between programs offered by the same provider, a consolidated record format that follows the child may be used.

(15) Records must be retained for a minimum period of six years from the date of the last service provided to child or, in the case of a minor, for at least six years after the last date of service or three years after he/she reaches majority whichever time period is longer.

(16) Information in case records that is subject to the confidentiality protections of Mental Hygiene Law section 33.13 may be shared between facilities, agencies, and programs responsible for the provision of services pursuant to an approval local or unified services plan (including programs that received funding from the Office disbursed via a State aid letter); the Office and any of the psychiatric centers and programs that it operates; and facilities, agencies and programs that are not licensed by the Office and are not participants in an approval local or unified services plan, but are responsible for the provision of services to any patient pursuant to a written agreement with the Office as a party, provided, however, if a case record contains HIV or AIDS information that it is protected by Public Health Law Article 27-F, or information provided by a federally-funded alcoholism/substance abuse provider that is protected under 42 CFR part 2, such information shall only be re-disclosed as permitted by such law or regulation.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.10 Organization and administration

(b) In programs operated by not-for-profit corporations other than hospitals licensed pursuant to article 28 of the Public Health Law, no person shall serve both as a member of the governing body and of the paid staff without prior written approval of the office.

(1) to meet at least four times a year;

(2) to review, approve and maintain minutes of all official meetings;

(3) to develop an organizational plan which indicates lines of accountability and the qualifications required for staff positions. Such plan may include the delegation of the responsibility for the day-to-day management of the program to a designated professional who is qualified by training and experience to supervise program staff;

(4) to review the program's compliance with the terms and conditions of its operating certificate, applicable laws, and regulations;

(5) to design and operate services consistent with and appropriate to the ethnic and cultural background of the population served. This can include ethnic representation on the staff and board and inclusion of culturally and ethnically relevant content in service programs;

(6) to ensure that planning decisions are based upon input from the child and, where appropriate, their family members;

(7) to develop, approve, and periodically review and revise, as appropriate, all program and service policies and procedures. Such policies and procedures shall include, but are not limited to, the following:

(i) written criteria for admission, and discharge from the program.

(ii) policies and procedures for conducting initial and ongoing risk assessments and for development of plans to address identified areas of elevated risk, including procedures to ensure that any health or mental health issues identified are treated appropriately or that an appropriate referral to a treatment provider and subsequent follow up is made;

(iii) policies and procedures addressing child engagement and retention in treatment, including, at minimum, plans for outreach and re-engagement efforts commensurate with a child's assessed risk;

(iv) policies and procedures for screening for abuse or dependence on alcohol or other substances;

(v) policies and procedures ensuring that a reasonable effort shall be made to obtain records from prior recent episodes of treatment;

(vi) policies and procedures ensuring that a reasonable effort shall be made to communicate with family members, current service providers, and other collaterals, as appropriate;

(vii) written policies and procedures describing an individual grievance process which ensures the timely review and resolution of child complaints and which provides a process enabling the child to request review by the office when resolution is not satisfactory;

(viii) written personnel policies which shall prohibit discrimination on the basis of race, color, creed, disability, sex, marital status, age, national origin or sexual orientation, HIV status, military status, predisposing genetic characteristics and the applicable obligations imposed by: Title VII of the Civil Rights Act; Federal Executive Order 11246; the Rehabilitation Act of 1973, section 504; the Vietnam Era Veteran's Readjustment Act; the Federal Age Discrimination in Employment Act of 1967; the Federal Equal Pay Act of 1963; the Americans with Disabilities Act of 1990; and the State Human Rights Law (Executive Law, Article 15);

(ix) for programs that will provide services to minors, written policies which shall provide for screening of employees, through the New York Statewide Central Register of Child Abuse and Maltreatment, verification of employment history, personal references, work record and qualifications as well as requesting the office to perform criminal history record checks.

(x) written volunteer policies which shall provide for screening of volunteers, through the New York Statewide Central Register of Child Abuse and Maltreatment, verification of employment history, personal references, work history, and supervision of volunteers, as well as requesting the office to perform criminal history checks, in accordance with Part 550 of this Title.

(xi) written policies regarding the selection, supervision, and conduct of students accepted for training in fulfillment of a written agreement between the agency and a State Education Department accredited higher education institution, as well as requesting the office to perform criminal history record checks, in accordance with Part 550 of this Title.

(xii) written policies which shall establish that contracts with third party contractors that are not subject to the criminal history background check requirements established in section 31.35 of the Mental Hygiene Law include reasonable due diligence requirements to ensure that any persons performing services under such contract that will have regular and substantial unsupervised or unrestricted contact with of the program do not have a criminal history that could represent a threat to the health, safety, or welfare of a child in the program, including, but not limited to, the provision of a signed, sworn statement whether, to the best of his or her knowledge, such person has ever been convicted of a crime in this State or any other jurisdiction; and

(xiii) written policies and procedures regarding the mandatory reporting of child abuse or neglect, reporting procedures and obligations of persons required to report, mandatory reporting of deaths, immunity from liability, penalties for failure to report, and obligations for the provision of services and procedures necessary to safeguard the life or health of the child. Such policies and procedures shall address the requirements for the identification and reporting of abuse or neglect regarding individuals who are children, or who are the parents or guardians of children; and

(xiv) to ensure the establishment and implementation of training for current and new employees and volunteers that addresses the policies and procedures regarding child abuse and neglect.

(8) A provider of service shall ensure that no child who is otherwise appropriate for admission is denied access to services solely on the basis of having a co-occurring non-mental health diagnosis, or a diagnosis of HIV infection, AIDS, or AIDS-related complex.

(9) Written policies and procedures governing the child's records which ensure confidentiality consistent with sections 33.13 and 33.16 of the Mental Hygiene Law and 45 CFR Parts 160 and 164.

(10) The provider of service shall establish mechanisms for the meaningful participation of child and/or family representatives either through direct participation on the governing body, or through the creation of an individual advisory board. If an individual advisory board is used, the provider of service shall ensure a mechanism for the individual advisory board to make recommendations to the governing body.

(11) The provider of service shall develop and make available to individuals and collaterals, a plan which will assure an appropriate response to individuals admitted to the agency and their collaterals who need assistance when the program is not in operation.

(12) A provider of service shall ensure that any program subject to this Part does not:

(i) utilize restraint or seclusion for any purpose, including, but not limited to, as a response to a crisis situation, provided, however, that in situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, nothing in this section shall be construed to prohibit the use of reasonable physical force when necessary to protect the life and limb of any person; and

(ii) perform electroconvulsive therapy or aversive conditioning therapy for any purpose, including, but not limited to, as a treatment intervention.

(13) A provider of service shall ensure that individual participation in research only occurs in accordance with applicable Federal and State requirements.

(14) A provider of service shall ensure the development, implementation and ongoing monitoring of a risk management program that includes the requirements for identification, documentation, reporting, investigation, review, and monitoring of incidents pursuant to the Mental Hygiene Law.

(15) A provider of service has written emergency preparedness and response plan for all of its services and locations that includes responses to environmental and natural disasters and staff shall be trained about it procedures.

(16) A provider of service has written protocols to address personal safety of staff and provides appropriate training in de-escalation techniques

(17) There shall be a written utilization review procedure to ensure that the child is receiving appropriate services and are being served at an appropriate level of care. Such policies and procedures shall include provisions ensuring that utilization review is performed and shall be performed only by professional staff trained to do such reviews, or by staff who are otherwise qualified by virtue of their civil service standing, and shall ensure to the maximum extent possible that the designated utilization review authority functions independently of the clinical staff that is treating the individual under review. Such utilization review procedure shall provide for:

(i) a review of the appropriateness of admission to services; and

(ii) a review of the need for continued treatment

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.11 Individual rights

(a) A child receiving services pursuant to this Part are entitled to the rights as defined in 527.5 regulation. A provider of service shall be responsible for ensuring the protection of these rights.

(1) A child and family has the right to an individualized plan of treatment services and to participate to the fullest extent consistent with the individual's capacity in the establishment and revision of that plan.

(2) A child and family has the right to a full explanation of the services provided in accordance with their treatment or rehabilitation service plan.

(3) Participation in treatment is voluntary and the child is presumed to have the capacity to consent to such treatment. The right to participate voluntarily in and to consent to treatment shall be limited only to the extent that:

(i) Section 33.21 of the Mental Hygiene Law provides for the surrogate consent of a parent or guardian of a minor;

(ii) a child is enrolled in an assisted outpatient treatment program established pursuant to section 9.60 of the Mental Hygiene Law; or

(iii) a child engages in conduct which poses a risk of physical harm to himself or others.

(iv) While a child's full participation in treatment is a central goal, a child or their parent/ guardian's objection to the child's treatment or rehabilitation service plan, or disagreement with any portion thereof, shall not, in and of itself, result in his or her termination from the program unless such objection renders continued participation in the program clinically inappropriate or would endanger the safety of the child or others.

(4) A child shall be assured access to their clinical records consistent with section 33.16 of the Mental Hygiene Law.

(5) A child has the right to receive clinically appropriate care and treatment that is suited to their needs and skillfully, safely and humanely administered with full respect for their dignity and personal integrity.

(6) A child has the right to receive services in such a manner as to assure nondiscrimination.

(7) A child has the right to be treated in a way which acknowledges and respects their cultural environment.

(8) A child has the right to a maximum amount of privacy consistent with the effective delivery of services.

(9) A child has the right to freedom from abuse and mistreatment by staff.

(10) A child has the right to be informed of the provider's recipient grievance policies and procedures, and to initiate any question, complaint or objection accordingly.

(11) A provider of service shall provide a notice of individuals' rights as described in subdivision (a) of this section to each child upon admission to a program. Such notice shall be provided in writing and posted in a conspicuous location easily accessible to the public. The notice shall include the address and telephone number of the Justice Center for the Protection of People with Special Needs, the nearest regional office of the Protection and Advocacy for Mentally Ill Individuals Program, the nearest chapter of the Alliance on Mental Illness of New York State, and the Office of Mental Health.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.12 Medicaid Reimbursement

Reimbursement for children's behavioral health and health services must be in accordance with the rates established by the Department of Health and approved by the Director of the Division of Budget. The rates can be found on the New York State Department of Health website.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.13 Premises

(a) The CMHRS program may deliver services in the home, community-based or other site-based settings when appropriate, in order to provide for individualized service delivery consistent with the child's conditions and needs.

(b) The CMHRS program shall provide services in settings that are adequate and appropriate in accordance with the following:

(1) All CMHRS programs shall allocate adequate space for the number of persons served by the program when provided on site.

(2) All CMHRS programs shall provide for sufficient types and arrangements of spaces to provide individual and group activities consistent with the program's capacity and purpose.

(i) All CMHRS shall provide for controlled access to and maintenance of records.

(ii) All CMHRS programs shall provide for appropriate furnishings and equipment consistent with the purpose of the program.

(3) All CMHRS programs shall provide services in settings that are conducive to meeting treatment goals/objectives, accommodating to the child's conditions and needs, safe and accessible for the child and staff, and assure privacy for the delivery of services.

(4) The provider of service shall possess a Certificate of Occupancy in accordance with the Building Code of New York State and the Property Maintenance Code of New York State (19 NYCRR Chapter XXXIII, Subchapter A, Parts 1221 and 1226) or comparable local codes.

(5) The provider of service shall consider the use of appropriate features and equipment that enable the accessibility of persons with physical disabilities, consistent with the population being served by the program.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.14 Quality Improvement

(a) The provider of service shall have an organized quality assurance program designed to enhance individual care through the ongoing objective assessment of important aspects of the child's care and the correction of identified problems. The quality assurance program shall provide for the following:

(1) identification of problems or concerns related to the care of individuals including, but not limited to, compliance with the treatment plan;

(2) objective assessment of the cause and scope of the problems or concerns, including the determination of priorities for both investigating and resolving problems and concerns. Priorities shall be related to the degree of adverse impact on the care provided to individuals that can be expected if the problems or concerns remain unresolved;

(3) recommendations related to implementation of decisions or actions that are designed to eliminate, insofar as possible, identified problems; and

(4) monitoring to assess whether or not the desired result has been achieved and sustained.

(b) Each provider of service shall prepare a written quality assurance plan designed to ensure that there is an ongoing quality assurance program that includes effective mechanisms for reviewing and evaluating individual care and provides for appropriate response to findings. The written quality assurance plan shall address at a minimum:

(i) the individual or group with the overall responsibility to administer or coordinate the quality assurance program;

(ii) the individuals or organizational entities to whom responsibility will be delegated for specific activities or mechanisms;

(iii) the activities or mechanisms for reviewing and evaluating care;

(iv) the activities or mechanisms for assuring the accountability of the staff for the care they provide;

(v) the individuals or organizational entities to whom responsibility will be delegated for responding to findings or implementing corrective actions designed to eliminate, insofar as possible, identified problems; and

(vi) the activities or mechanisms for monitoring whether or not the corrective actions have been implemented, and whether or not the desired result has been achieved and sustained.

(c) CMHRS programs shall have procedures for internal monitoring of program performance. Performance should be monitored against the criteria stated in the program's functional program. The results of this internal monitoring shall be used to identify problems in client care and opportunities to improve care and shall be regularly reviewed and acted on by the governing body.

(d) The Office of Mental Health shall have responsibility for monitoring the quality of CMHRS programs. Upon a determination that a provider of service is in violation of this Part or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, standard, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate or impose fines in accordance with Mental Hygiene Law, section 31.16 and Parts 53 and 503 of this Title.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 511-2.15 Local Planning

The provider of service shall participate as required with the local governmental unit in local planning processes pursuant to sections 41.05 and 41.16 of the Mental Hygiene Law.

History

Adopted New York State Register July 17, 2019/Volume XLI, Issue 29, eff. 7/17/2019

Part 512 Personalized Recovery Oriented Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.1 Background and intent

(a) This Part establishes certification standards for personalized recovery-oriented services (PROS) programs. The purpose of PROS programs is to assist individuals in recovering from the disabling effects of mental illness.

(b) The Office of Mental Health shall issue operating certificates to programs that meet the standards set forth in this Part. Certification in and of itself does not confer eligibility to receive financial support from any governmental source. In order to qualify for reimbursement under the medical assistance program, PROS programs must comply with the standards specified in section 512.11 of this Part.

(c) In order to be eligible for payments pursuant to title 11 of article 5 of the Social Services Law, a PROS program must be certified to provide services by the Office of Mental Health in addition to meeting the requirements of title XIX of the Social Security Act.

(d) This Part establishes rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for the participation of individuals in an eligible PROS program.

(e) The rates of payment established pursuant to this Part are intended to be adequate to meet the costs of an efficiently and economically operated program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.2 Legal base

(a) Sections 7.09 (b) and 31.04 (a) of the Mental Hygiene Law give the commissioner the power and responsibility to plan, establish and evaluate programs and services for the benefit of individuals with mental illness, and to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(b) Section 41.05 of the Mental Hygiene Law provides that a local governmental unit shall direct and administer a local comprehensive planning process for its geographic area in which all providers of service shall participate and cooperate through the development of integrated systems of care and treatment for people with mental illness.

(c) Subdivision (a) of section 43.02 of the Mental Hygiene Law provides that payments under the Medical Assistance Program for programs approved by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Division of the Budget.

(d) Subdivision (b) of section 43.02 of the Mental Hygiene Law gives the commissioner authority to request from operators of facilities certified by the Office of Mental Health such financial, statistical and program information as the commissioner may determine to be necessary.

(e) Subdivision (c) of section 43.02 of the Mental Hygiene Law gives the Commissioner of Mental Health the authority to adopt rules and regulations relating to methodologies used in establishment of schedules of rates for payment.

(f) Sections 364 (3) and 364-a (1) of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.

(g) Section 365-m of the Social Services Law authorizes the Commissioner of the Office of Mental Health and the Commissioner of the Office of Alcoholism and Substance Abuse Services, in consultation with the Department of Health, to contract with regional behavioral health organizations to provide administrative and management services for the provision of behavioral health services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.3 Applicability

This Part shall apply to any provider of service that has been certified to operate or proposes to operate a PROS program that must be certified by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.4 Definitions

(a) Admission date is the day that the PROS program completes and submits a PROS registration form on behalf of a PROS participant, using the registration system approved by the office.

(b) Adult means an individual 18 years of age or older.

(c) Behavioral health organization or BHO means an entity selected by the Commissioner of the Office of Mental Health and the Commissioner of the Office of Alcoholism and Substance Abuse Services pursuant to section 365-m of the New York State Social Services Law to provide administrative and management services for the purposes of conducting concurrent review of behavioral health admissions to inpatient treatment settings, assisting in the coordination of behavioral health services, and facilitating the integration of such services with physical health care.

(d) Capacity means the maximum number of people to whom a PROS program can provide services at any given time.

(e) Carved-out services means those special care services that are not included in the benefit package of a managed care provider, for all managed care enrollees, regardless of aid category.

(f) Clinical staff means all staff members, including any recipient employees, who provide services directly to individuals admitted to PROS programs or their collaterals. Students and trainees may qualify if they are participating in a program leading to a degree or certificate appropriate to the goals, objectives and services of the PROS program, are supervised in accordance with the policies governing the training program, and are approved as part of the staffing plan by the Office of Mental Health.

(g) Collateral means a person who is:

(1) a significant other or member of the PROS participant's family or household, academic, workplace or residential setting, who regularly interacts with the individual and is directly affected by, or has the capability of affecting, his or her condition; and

(2) identified in the individualized recovery plan, and approved by the individual, as having a role in services and/or is identified in the pre-admission notes as being necessary for participation in the evaluation and assessment of the individual prior to admission; and

(3) not a staff member of the PROS program or any other mental health service provider except when the staff member is participating in services in his or her role as the recipient's collateral, and not in his or her staff member role.

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

(i) Comprehensive PROS program, unless otherwise specified, means a comprehensive PROS program with clinical treatment or a comprehensive PROS program without clinical treatment.

(j) Comprehensive psychiatric rehabilitation assessment means the process of identifying the skills and supports necessary for an individual to be successful in his or her chosen life roles. Such assessment is intended to focus on the individual's living, learning, working, parenting and social goals, and to identify barriers, due to the individual's mental illness, that are preventing achievement of the individual's recovery goals. The assessment should also identify the individual's strengths that can be utilized in the achievement of his or her recovery goals.

(k) Concurrent review means the review of the clinical necessity for continued inpatient behavioral health services, resulting in a non-binding recommendation regarding the need for such continued inpatient services.

(l) Designated mental illness diagnosis means a DSM-IV diagnosis (or ICD-9-CM equivalent) other than:

(1) alcohol or drug disorders;

(2) developmental disabilities;

(3) organic brain syndromes; or

(4) social conditions (V-codes).

ICD-9-CM categories and codes that do not have an equivalent in DSM-IV are not included as designated mental illness diagnoses.

(m) Due diligence means the exercise of reasonable and appropriate efforts to comply with the standards set forth in this Part.

(n) Evidence-based practice means an intervention for which there is consistent, scientific evidence showing that it improves recipient outcomes. Those services identified in section 512.5 of this Part that are most closely associated with evidence-based practices, as of the effective date of this Part, include the following: family psychoeducation/intensive family support; integrated treatment for dual disorders (IDDT); medication management; ongoing rehabilitation and support (related to the evidence based practice of supported employment); and wellness self-management.

(o) Face-to-face means contact between a PROS participant, or his or her collateral, and a member of the PROS clinical staff, at a specific location, for the purpose of providing a medically necessary service for the PROS participant's benefit.

(p) Functional disability means a deficit that rises to the level of impairment in one or more of the following areas: self-care; activities of daily living; interpersonal relations; or adaptation to change or task performance in work or work-like settings.

(q) Licensed practitioner of the healing arts (LPHA) means the following professional staff, as defined in this Part:

(1) nurse practitioner;

(2) physician;

(3) physician assistant;

(4) psychiatric nurse practitioner;

(5) psychiatrist;

(6) psychologist;

(7) registered professional nurse;

(8) licensed clinical social worker (LCSW); and

(9) licensed master social worker (LMSW) if supervised by an LCSW, licensed psychologist, or psychiatrist employed by the agency.

(r) Local governmental unit (LGU) means the unit of government given the authority in accordance with article 41 of the Mental Hygiene Law to plan and provide for local or unified services.

(s) Month means any time between and including the first and last days of any calendar month in a given year.

(t) Monthly caseload means the maximum number of individuals who can be registered to receive services from the PROS program in any given month.

(u) New York Employment Support System (NYESS) is a secure computer-based case management tool developed by OMH and New York State Department of Labor used by PROS providers to provide employment services and as a data-reporting instrument.

(v) Office means the New York State Office of Mental Health (OMH).

(w) Off-site, for purposes of providing PROS services, means any clinically appropriate location in the community, other than a licensed PROS site, where an individual may receive services.

(x) Off-site program participation means the duration of time spent in the delivery of face-to-face services to a PROS participant or collateral at an off-site location.

(y) On-site program participation means the duration of time that a PROS participant or collateral is in attendance at the PROS program on a given day.

(1) Scheduled meal periods or planned recreational activities that are not specifically designated as medically necessary in the individual's individualized recovery plan shall be excluded from the calculation of program participation.

(2) Time spent in the program by a collateral shall not be considered on-site program participation if the PROS participant is simultaneously being credited with program participation on a given day.

(z) Pre-admission status means the time period that begins when an individual first receives a PROS pre-admission service, and ends on the individual's PROS admission date.

(aa) Professional staff means members of the clinical staff who are qualified by credentials, training and experience to provide supervision and direct service related to the care or treatment of persons with a designated mental illness diagnosis, and shall include the following:

(1) creative arts therapist, which means an individual who is currently licensed as a creative arts therapist by the New York State Education Department, or who has a master's degree in a mental health field from a program approved by the New York State Education Department, and registration or certification by the American Art Therapy Association, American Dance Therapy Association, National Association of Music Therapy or American Association for Music Therapy;

(2) credentialed alcoholism and substance abuse counselor, which means an individual who is currently credentialed by the New York State Office of Alcoholism and Substance Abuse Services in accordance with Part 853 of this Title;

(3) marriage and family therapist, which means an individual who is currently licensed as a marriage and family therapist by the New York State Education Department;

(4) mental health counselor, which means an individual who is currently licensed as a mental health counselor by the New York State Education Department;

(5) nurse practitioner, which means an individual who is currently certified as a nurse practitioner by the New York State Education Department;

(6) nurse practitioner in psychiatry, which means an individual who is currently certified as a nurse practitioner in psychiatry by the New York State Education Department. For purposes of this Part, nurse practitioner in psychiatry shall have the same meaning as psychiatric nurse practitioner, as defined by the New York State Education Department;

(7) occupational therapist, which means an individual who is currently licensed as an occupational therapist by the New York State Education Department;

(8) pastoral counselor, which means an individual who has a master's degree or equivalent in pastoral counseling or is a Fellow of the American Association of Pastoral Counselors;

(9) physician, which means an individual who is currently licensed as a physician by the New York State Education Department;

(10) physician assistant, which means an individual who is currently registered as a physician assistant or a specialist's assistant by the New York State Education Department;

(11) psychiatrist, which means an individual who is currently licensed as a physician by the New York State Education Department and who is certified by, or eligible to be certified by, the American Board of Psychiatry and Neurology;

(12) psychoanalyst, which means an individual who is currently licensed as a psychoanalyst by the New York State Education Department;

(13) psychologist, which means an individual who is currently licensed as a psychologist by the New York State Education Department. Individuals with at least a master's degree in psychology who do not meet this definition may not be considered licensed practitioners of the healing arts, and may not be assigned supervisory responsibility. However, individuals who have obtained at least a master's degree in psychology may be considered professional staff for the purposes of calculating professional staff and full time equivalent professional staff;

(14) registered professional nurse, which means an individual who is currently licensed as a registered professional nurse by the New York State Education Department;

(15) rehabilitation counselor, which means an individual who has either a master's degree in rehabilitation counseling from a program approved by the New York State Education Department or current certification by the Commission on Rehabilitation Counselor Certification;

(16) social worker, which means an individual who is currently licensed as a master social worker (LMSW) or clinical social worker (LCSW) by the New York State Education Department. LMSWs must be supervised by a LCSW, licensed psychologist, or psychiatrist employed by the agency. Social workers who do not meet this criteria may not be considered licensed practitioners of the healing arts. However, social workers who have obtained at least a master's degree in social work from a program approved by the New York State Education Department may be considered professional staff for the purposes of calculating professional staff and full-time equivalent professional staff;

(17) therapeutic recreation specialist, which means an individual who has either a master's degree in therapeutic recreation from a program approved by the New York State Education Department or registration as a therapeutic recreation specialist by the National Therapeutic Recreation Society; and

(18) other staff may be included as professional staff with the prior written approval of the office, when such individuals have specified training or experience in the care or treatment of individuals diagnosed with mental illness. Such staff may include, but are not limited to, persons who are registered or certified by the United States Psychiatric Rehabilitation Association (USPRA).

(ab) Program participation means a combination of on-site program participation and off-site program participation for a specific individual on a given day.

(ac) PROS program or PROS provider, unless otherwise specified, means a comprehensive PROS program or a limited license PROS program.

(ad) PROS unit is determined by a combination of on-site and off-site program participation and service frequency.

(ae) Provider of service means the entity that is legally responsible for the operation of a PROS program. Such entity may be an individual, partnership, association, limited liability corporation, or corporation.

(af) Recipient attestation form is a form provided to a recipient by a PROS program for him or her to sign when he or she has chosen to participate in one or more components of the PROS program.

(ag) Recipient employee means an individual who is financially compensated by a provider for providing clinical or non-clinical PROS services in the same program where the individual also receives PROS services.

(ah) Registration is the process by which individuals are assigned to PROS programs and specific PROS components. The programs with which individuals are registered are recognized by the office as authorized providers of PROS services for those individuals.

(ai) Registration date means the first calendar month for which all PROS components and monthly base rate levels can be billed for Medicaid-eligible individuals.

(aj) Relapse prevention plan means a collaboratively developed document, required as part of individualized recovery planning and included in the individualized recovery plan, that identifies a series of actions to be taken by the individual, the program, and/or a collateral identified by the individual to avoid worsening of an individual's mental health symptoms and prevent hospitalization.

(ak) Service frequency means the number of medically necessary PROS services delivered to an individual or collateral during the course of a program day.

(al) Site means a location where PROS services are provided on a regular and routine basis, and which is authorized by a PROS operating certificate.

(am) Sponsor means the provider of service or an entity that substantially controls or has the ability to substantially control the provider of service. For the purpose of this Part, factors used to determine whether there is substantial control shall include, but are not limited to, the following:

(1) the right to appoint and remove directors or officers;

(2) the right to approve bylaws or articles of incorporation;

(3) the right to approve strategic or financial plans for a provider of service; or

(4) the right to approve operating or capital budgets for a provider of service.

(an) Target population member means an individual who has received long-term supports and services for at least six (6) months while living in an adult home, nursing home as defined in Section 2801 of the Public Health Law, State-operated community residence, or as an inpatient in a State psychiatric center, and is currently living in a more independent, integrated community setting, provided, however, that an individual shall be a considered a target population member for no longer than 12 consecutive calendar months following discharge from one of the aforementioned settings.

History

Amended, New York State Register November 12, 2014/Volume XXXVI, Issue 45, eff. 11/12/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.5 Service categories and requirements

Each of the following services, offered by PROS providers in accordance with their certification category, are provided face-to-face by PROS staff members for the purpose of assisting individuals to overcome the barriers caused by their mental illness that are preventing them from achieving their chosen goals.

(a) Assessment is a service designed to review and determine an individual's level of functioning, the past benefits of participating in mental health services, and his or her ability to function in specific life roles. In addition, the assessment service should identify the individual's strengths as well as challenges and barriers encountered as a result of his or her psychiatric condition. The assessment service involves a comprehensive and continuous process, conducted within the context of the individual's self-identified needs, goals, and ethnic, religious and cultural identities. Each assessment must result in a summary of findings, within the context of the specific assessment focus, that addresses the individual's strengths, talents, and abilities, as well as the challenges and barriers presented by the individual's mental illness.

(b) Basic living skills training is a service designed to improve an individual's ability to perform the basic skills necessary to achieve maximum independence and acceptable community behaviors that are critical to his or her recovery. This service focuses on the acquisition of skills, as well as strategies for appropriate use of the skill, utilizing teaching interventions such as motivational, educational and cognitive-behavioral techniques. The service may include opportunities to practice, observe, reinforce and improve the individual's skill performance. The topics which may be covered include, but are not limited to: grooming and personal hygiene, nutrition, homemaking, building relationships, childcare, transportation, use of community resources, and engaging in social interactions.

(c) Benefits and financial management is a service designed to support an individual's functioning in the community through understanding and skill in handling his or her financial resources. The instruction may include counseling on budgeting, income and benefits, including incentives for returning to work as well as basic counseling on income maintenance, eligibility for benefits from relevant sources, and determination of the need for plans for additional support and assistance in managing personal finances.

(d) Clinical counseling and therapy is a service designed to provide goal-oriented verbal counseling or therapy, including individual, group and family counseling or therapy, for the purpose of addressing the emotional, cognitive and behavioral symptoms of a mental health disorder or for engaging, motivating and stabilizing persons with a co-occurring mental health and substance abuse (including alcohol) disorder, and the related effects on role functioning. Such service may also include cognitive behavioral therapy.

(e) Cognitive remediation is a set of techniques and interventions, such as drills, activities and exercises, designed to improve an individual's functioning by improving the cognitive skill that is the target of the remediation task. These skills include, but are not limited to: the ability to pay attention, remember, process information, solve problems, organize and reorganize information, communicate and act upon information. Cognitive remediation techniques work to improve mental capabilities necessary to learn academic subject matter, and more generally to function in daily life. Cognitive remediation is an optional PROS service, subject to prior review and written approval of the office.

(f) Community living exploration is a service designed to help an individual understand the demands of specific community life roles, in order to make decisions regarding participation in those roles. Community living exploration services can also be used to help motivate individuals who are not yet exhibiting active interest in more integrated community life roles, by increasing their knowledge of opportunities available in the community. Topics may include, but are not limited to: options for satisfactory experiences with living environments, work or career opportunities, educational opportunities, opportunities to connect to culturally-based community services, and resources for use of leisure time. It is expected that, to the extent possible, these services will be developed in natural community environments.

(g) Crisis intervention is a service designed to safely and respectfully de-escalate situations of acute distress or agitation which require immediate attention. Such service may include, but is not limited to, calming techniques to interrupt escalating behavior.

(h) Engagement is a service designed to reach out to individuals over time for the purpose of fostering a commitment on the part of an individual to enter into therapeutic relationships supportive of the individual's recovery. This service may include, but is not limited to, activities such as initial contacts with potential program participants, as well as ongoing efforts to engage individuals to participate in program services.

(i) Family psychoeducation/intensive family support is an intensive rehabilitation (IR) service designed to provide information, clinical guidance and support to collaterals and PROS participants when desired and appropriate, for the purpose of assisting and enhancing the capacity of a collateral to facilitate an individual's recovery. Specific examples of family psychoeducation/intensive family support include consumer-centered family consultation (CCFC), psychoeducational multiple family groups (MFGs), and behavioral family therapy.

(j) Health assessment is a service designed to gather data concerning an individual's medical history and any current signs and symptoms, and assess such data to determine his or her physical health status and need for referral. The assessment of the data shall be done by a nurse practitioner, psychiatric nurse practitioner, physician, physician's assistant, psychiatrist or registered professional nurse. Where indicated, this service shall include screening for metabolic syndrome, diabetes, and hypertension on a periodic basis.

(k) Individualized recovery planning is a continuous, dynamic process that engages each person as an active partner in developing, reviewing and modifying a course of care that supports his or her progress towards recovery. The course of care is based on an assessment process and the individual's personal preferences and desired life roles. The course of care is reflected in an individualized recovery plan (IRP), which includes the identification of medically necessary services and which supports the individual's goals and desires. The individualized recovery planning process also includes the development of a relapse prevention plan by the individual in partnership with the PROS practitioner and, when appropriate, an advance directive. The service may also involve activities designed to help identify and develop compensatory supports necessary to assist an individual during his or her recovery process.

(l) Information and education regarding self-help is a service designed to encourage individuals to participate in self-help and mutual aid groups. The service is designed to help an individual understand what self-help resources are available in the community and how to benefit from participating in them. The service may be conducted by people who have common experiences, and is intended to help the individual to learn how to share personal experiences with others who have had a common experience, to learn about the variety of available self-help groups, and to aid the individual in accessing the self-help options of his or her choice.

(m) Integrated treatment for dual disorders (IDDT) is an evidence-based practice designed to address the mental health and substance abuse needs of persons with co-occurring disorders simultaneously. Such service includes, but is not limited to, motivational, cognitive-behavioral and harm reduction approaches, wherein practitioners coordinate care with appropriate substance abuse providers when it is determined that the co-occurring disorder is acute or serious, and the recipient is ready to accept related treatment.

(n) Intensive rehabilitation goal acquisition is a service designed to assist an individual in identifying, attaining and retaining personally meaningful goals that will help the person to resume normal functioning in adult life roles. This service should be used to provide active support once an individual has made a commitment to achieving a new role, such as returning to work or school, returning to adult care giving or parenting roles, resuming roles as a spouse or significant other, obtaining a desired housing arrangement, and resuming a role as a community volunteer. Due to the urgency associated with the individual's readiness to attain and maintain a preferred life role, this service is not normally a long-term intervention.

(o) Intensive relapse prevention is a service designed to address an exacerbation of acute symptoms, or manage existing symptoms that are not responsive to the current service formulation. This may include the provision of targeted, intensive interventions necessary to address immediate risks such as relapse, hospitalization, loss of housing, or involvement with the criminal justice system. This service may also include the execution of a series of predetermined steps identified in the relapse prevention plan.

(p) Medication management is a service designed to prescribe or administer medication with the highest efficacy and lowest toxicity in treating the primary symptoms of an individual's psychiatric condition. This service is intended to include medication trials which are adequate in dose and duration, as well as assessments of the appropriateness of the individual's existing medication regimen through record reviews, ongoing monitoring, and consultation with the PROS participant and/or collateral. The purpose of such consultation is to determine personal preferences, as well as past and present experiences with medication, including related efficacy, side effects and compliance. Medication management may includes monitoring the side effects of prescribed medications, including, but not limited to, extrapyramidal, cardiac and metabolic side effects, and may include providing individuals with information concerning the effects, benefits, risks and possible side effects of a proposed course of medication.

(q) Ongoing rehabilitation and support is a service designed to provide ongoing counseling, mentoring, advocacy and support for the purpose of sustaining an individual's role in competitive, integrated employment. Such service does not include task-specific job training.

(r) Pre-admission screening is a service designed to include the initial process of contacting, engaging, interviewing and evaluating an individual to determine his or her need and desire for PROS services. The result of pre-admission screening is a determination of the individual's desire to participate in services and the program's appropriateness to meet the needs of the individual.

(s) Psychiatric assessment is a service designed to gather data concerning an individual's psychiatric history and current mental health symptoms, assess such data for determination of the individual's current mental health status, and identify the need for clinical treatment services. Assessment of the data shall be done by a psychiatrist or psychiatric nurse practitioner.

(t) Structured skill development and support is a service designed to assist individuals in developing instrumental skills for performing normative life roles associated with group membership, work, education, parenting or living environments. The focus of structured skill development is to develop skills through a process of teaching, practice, and feedback in community environments replicated at the program site. The modality for teaching these skills is a combination of individual, group and structured activities. It is often provided in structured club-like settings such as a work-ordered day or an activity-center format, where staff employ supportive counseling, mentoring and skill development techniques to assist the individual in completion of essential tasks.

(u) Symptom monitoring is a service designed to identify the ongoing effects of an individual's course of care. This service involves the continuous process of monitoring a recipient's symptoms of mental illness, as identified in his or her individualized recovery plan, and his or her response to treatment, within the context of other support and rehabilitation services. Such service may include consultation with identified collaterals. If this service is provided by a staff person other than a psychiatrist, nurse or nurse practitioner, it must include communication of observed symptoms and treatment responses to the physician or nurse.

(v) Wellness self-management (also known as illness management and recovery) is a service designed to develop or improve personal coping strategies, prevent relapse, and promote recovery. Such services may be provided to recipients and/or collaterals, and may include, but are not limited to:

(1) coping skills training which means teaching individuals strategies to address symptoms, manage stress and reduce exposure and vulnerability to stress;

(2) disability education which means instruction on the facts concerning mental illness and the potential for recovery. The intent of this service is to give individuals admitted to PROS programs and collaterals hope as well as practical information on prevention and recovery practices, including evidence-based practices;

(3) dual disorder education which means providing individuals admitted to PROS programs and/or collaterals with basic information on the nature of substance abuse disorders and how they relate to the symptoms and experiences of mental illness;

(4) medication education and self-management which means providing individuals admitted to PROS programs or collaterals with information on the individual's medications, including related efficacy, side effects and compliance issues. Individuals are supported in managing their medications and in learning about the effects of the medication on their mental health condition and in managing the side effects of medication through healthy life style changes such as smoking cessation, nutrition, and weight loss;

(5) problem-solving skills training which means a series of learning activities designed to assist individuals admitted to PROS programs and collaterals develop effective solutions for stressful responses to routine life situations. These activities may include, but are not limited to: role playing exercises, homework assignments or the mastery of specific principles and techniques; and

(6) relapse prevention planning which means a process to engage individuals admitted to PROS programs and collaterals in understanding factors which may trigger a recurrence of severe symptoms of mental illness and ways to cope with the potential for recurrence. Planning activities may include the development of an advance directives document and specific instructions on what steps need to be taken in the event of a relapse.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.6 Certification

(a) A provider of service intending to operate a PROS program must obtain an initial operating certificate issued by the office in accordance with Part 551 of this Title. Renewals of such operating certificates shall be issued for terms of up to three years.

(b) PROS programs shall be licensed as one of the following program types:

(1) comprehensive PROS:

(i) with clinical treatment; or

(ii) without clinical treatment; or

(2) limited license PROS.

(c) It is the preference of the office to establish fully-integrated comprehensive PROS programs. However, applications for limited license PROS programs may be considered in cases where there is a need for the program identified by the local governmental unit and the capacity of the provider is not sufficient to deliver a comprehensive PROS.

(d) Each PROS program shall be authorized by a discrete operating certificate. In addition, if a PROS program is operating at multiple sites, each site shall be authorized by a discrete operating certificate. For each site, the operating certificate shall specify:

(1) the program type to be operated;

(2) the location of the program;

(3) the hours of operation of the program;

(4) the program's capacity;

(5) the population to be served; and

(6) the term of the operating certificate.

(e) The initial operating certificate issued pursuant to subdivision (a) of this section shall be for a term of up to one year. The provider's capacity and monthly caseload identified in the initial operating certificate shall be expressed by a numeric range. At a time determined by the office, but not less than one year from the date of initial licensure, the capacity and monthly caseload identified in the renewal of the initial operating certificate shall be in accordance with the provider's actual capacity and monthly caseload, as determined by the office, at that time.

(1) A provider shall not exceed the monthly caseload range identified in its operating certificate unless the provider receives approval pursuant to Part 551 of this Title.

(2) A provider shall not exceed the capacity range identified in its operating certificate by more than 15 percent, on a regular or routine basis, unless the provider receives approval pursuant to Part 551 of this Title.

(f) A PROS provider may offer services identified in section 512.7(b) of this Part pursuant to an agreement with another provider. Such agreements require prior approval of the office as clinical services contracts or management contracts in accordance with Part 551 of this Title.

(g) Establishment of a new PROS site or changes to the operating certificate, other than changes in the hours of operation as described in subdivision (h) of this section, require prior approval of the office in accordance with Part 551 of this Title. Such changes include, but are not limited to, the following:

(1) changes in the physical space or location, use of additional sites, or change in the provider's capacity;

(2) termination of the program; or

(3) changes in the powers or purposes set forth in the certificate of incorporation of the provider of service.

(h) Changes in the hours of operation of a program may be made upon approval of the office, in consultation with the local governmental unit.

(i) No PROS program site shall be located within the operating space of a residential program licensed by the office.

(j) An operating certificate may be limited, suspended or revoked by the office pursuant to Part 573 of this Title. The operating certificate is the property of the office and as such shall be returned to the office if it should be revoked.

(k) The commissioner, in consultation with the local governmental unit, may reduce a program's capacity and monthly caseload when it is determined that such program is not providing services at a reasonable level, or is not providing reasonable access to services in accordance with section 512.7(c)(6) of this Part. Such reduced capacity and monthly caseload may be reallocated, to another provider of service certified pursuant to this Part, in accordance with Parts 551 and 573 of this Title.

(l) The provider of service shall frame and display the operating certificate within the PROS program site in a conspicuous place that is readily accessible to the public.

(m) The commissioner is authorized to make inspections and examine all records of PROS programs. Such examination may include, but is not limited to, any medical, service, financial or contractual record. The provider of service shall cooperate with the office during any such inspection or examination.

(n) The commissioner shall have the authority to designate and approve demonstration projects for purposes of examining innovative program and administrative configurations, regulatory flexibility, and alternative funding methodologies.

(o) No renewal of an operating certificate pursuant to this Part and Part 551 of this Title shall be issued in the absence of an executed provider agreement developed in accordance with section 512.14(b) of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.7 Program operations

(a) Program purpose.

(1) The purpose of PROS programs is to partner with individuals in their recovery from mental illness through the delivery of integrated rehabilitation, treatment, and support services.

(i) PROS programs shall offer individuals who are recovering from mental illness an array of personalized and integrated recovery-oriented services, which are delivered within a site-based program setting as well as in off-site locations in the communities where such individuals live, learn, work and socialize.

(ii) PROS programs shall establish a therapeutic environment which fosters awareness, hopefulness and motivation for recovery, and incorporates a harm reduction philosophy.

(2) Depending upon program configuration and licensure category, PROS programs will include the following components: community rehabilitation and support (CRS); intensive rehabilitation (IR); ongoing rehabilitation and support (ORS); and clinical treatment.

(i) The CRS component shall be designed to engage and assist individuals in managing their illness and in restoring those skills and supports necessary to live in the community.

(ii) The IR component shall be designed to intensively assist individuals in attaining specific life roles such as those related to competitive employment, independent housing and school. The IR component may also be used to provide targeted interventions to reduce the risk of hospitalization or relapse, loss of housing or involvement with the criminal justice system, and to help individuals manage their symptoms.

(iii) The ORS component shall be designed to assist individuals in managing symptoms and overcoming functional impairments as they integrate into a competitive workplace. ORS interventions shall focus on supporting individuals in maintaining competitive integrated employment. Such services shall be provided off-site.

(iv) The clinical treatment component shall be designed to help stabilize, ameliorate and control an individual's symptoms of mental illness. Clinical treatment interventions must be highly integrated into the support and rehabilitation focus of the PROS program. The frequency and intensity of clinical treatment services shall be commensurate with the needs of the target population.

(3) A comprehensive PROS program shall offer, at a minimum, CRS, IR and ORS components. A comprehensive PROS program must be able to provide the following assessments:

(i) psychosocial assessment;

(ii) psychiatric rehabilitation assessment that addresses living, learning, working and social domains; and

(iii) screening for alcohol, substance abuse, and nicotine addiction.

(4) A comprehensive PROS program with clinical treatment shall offer, at minimum, CRS, IR, ORS, and clinical treatment components. In addition to the assessments required to be provided by all comprehensive PROS programs, a comprehensive PROS program with clinical treatment must be able to provide:

(i) psychiatric assessment; and

(ii) health assessment.

(5) A limited license PROS program shall offer IR and ORS components.

(6) All PROS providers shall establish mechanisms regarding the coordination of rehabilitation, treatment and support services for individuals, including linkage agreements with other providers as appropriate. These mechanisms shall address:

(i) coordination among any of the PROS components as specified in paragraph (2) of this subdivision that are delivered by the same PROS provider;

(ii) coordination among any of the PROS components as specified in paragraph (2) of this subdivision which are delivered by multiple PROS providers; and

(iii) coordination of PROS services with other service providers.

(b) Components and services.

(1) All PROS programs, regardless of certification category, shall offer the following services:

(i) individualized recovery planning services; and

(ii) pre-admission screening services.

(2) A CRS component shall include, at a minimum, the following services:

(i) assessment;

(ii) basic living skills training;

(iii) benefits and financial management;

(iv) community living exploration;

(v) crisis intervention;

(vi) engagement;

(vii) individualized recovery planning;

(viii) information and education regarding self help;

(ix) structured skill development and support; and

(x) wellness self-management.

(3) When CRS services are provided in a group format, such group size shall not, on a routine and regular basis, exceed 12 members. However, on an occasional basis, group sizes of between 13 and 24 members are permissible if the group is co-facilitated by at least two staff members, and there is documentation that the expanded group size is clinically appropriate for the service being provided. Pursuant to section 512.11(b)(13) of this Part, a PROS program may, within the specified limits, still use the service to satisfy the service frequency requirement of section 512.11(b)(11) of this Part for some group participants.

(4) An IR component, as part of a comprehensive PROS program, shall include, at a minimum, the following services:

(i) family psychoeducation/intensive family support;

(ii) integrated treatment for dual disorders;

(iii) intensive rehabilitation goal acquisition; and

(iv) intensive relapse prevention.

(5) In order to receive Medicaid-reimbursed integrated treatment for dual disorders as part of the IR component, the individual must also be receiving clinical treatment services within the PROS program or from another OMH- licensed clinic. If the individual is not receiving clinical treatment services directly within the PROS program, the PROS program shall document that the services provided by the clinic are integrated with those provided by the PROS program. Such integration shall include, at a minimum, the ongoing exchange of information, documentation of progress and outcomes related to the services provided by the clinic, and shall indicate the name of the treating psychiatrist or nurse practitioner at such clinic who will be collaborating with a designated member of the PROS clinical staff.

(6) An IR component, as part of a limited license PROS program, shall include, at a minimum, intensive rehabilitation goal acquisition services. Such services shall be limited to employment and education-oriented goals.

(7) When IR services are provided in a group format, such group size shall not exceed, on a regular and routine basis, eight members. However, family psychoeducation/intensive family support services provided in a group format may include up to 16 group members, if the group is co-facilitated by at least two staff members. Pursuant to section 512.11(c)(2)(ii) and (iii) of this Part, a PROS program may, within the specified limits, allow group sizes to exceed eight members, or 16 members for family psychoeducation/intensive family support groups, on an occasional basis, and still use the service to satisfy the service frequency requirement of section 512.11(b)(11) of this Part or the IR service requirement of section 512.11(c)(2)(i) of this Part for some group participants.

(8) An ORS component shall include, at a minimum, ongoing rehabilitation and support services.

(9) Clinical treatment is intended to enhance the array of available services offered within other PROS program components. The following services shall be available:

(i) clinical counseling and therapy;

(ii) health assessment;

(iii) medication management;

(iv) symptom monitoring; and

(v) psychiatric assessment.

(10) Providers offering medication management services shall consider the full range of atypical antipsychotic medications, available at the time when prescribing medication. Such providers shall conduct, or arrange for, any associated blood analysis, when so indicated.

(11) Any additional services delivered by a PROS program that are clinically appropriate shall be considered as optional and shall be subject to prior review and written approval of the office. Such services may include, but are not limited to, cognitive remediation services.

(1) Admission criteria must conform to applicable State and Federal law governing non-discrimination. Admission criteria shall not exclude individuals because of past histories of incarceration or substance abuse. A provider of service shall not deny access to services by an otherwise appropriate individual solely on the basis of multiple diagnoses or a diagnosis of HIV infection, AIDS, or AIDS-related complex.

(2) The program's admission process, including any criteria governing participation in the program, shall be clearly described and available for review by participants, their families or significant others.

(3) Providers of service shall not use coercion in regard to program admission or discharge, referrals to other programs, or the level of service provision, provided that nothing in this paragraph shall be interpreted to affect or otherwise impact the delivery of services to an individual under a court order issued pursuant to section 9.60 of the Mental Hygiene Law.

(4) Prior to admission to a PROS program, pre-admission screening services may be provided. During such time, the individual shall be considered to be in pre-admission status.

(5) To be eligible for admission to a PROS program, a person must:

(i) be 18 years of age or older;

(ii) have a designated mental illness diagnosis;

(iii) have a functional disability due to the severity and duration of mental illness; and

(iv) be recommended for admission by a licensed practitioner of the healing arts (LPHA). The recommendation must be in writing, must be signed and dated, and must include an explanation of the medical need for PROS services.

(a) If the LPHA making the recommendation is not a member of the PROS program staff, the recommendation must include the LPHA license number.

(b) If the LPHA making the recommendation is a member of the PROS program staff, the recommendation must include the identification of the PROS components that will initially meet the individual's needs and the LPHA must sign the screening and admission note.

(6) Admission of an eligible individual to a PROS program shall be based upon service availability, and not based upon an individual's ability to pay for such services.

(7) Upon a decision to admit an individual to a PROS program, a screening and admission note shall be written. Such note shall include the following:

(i) reason for admission;

(ii) primary service-related needs and services to meet those needs;

(iii) admission diagnosis, and

(iv) signature of a professional member of the PROS staff.

(8) After admission, the initial service recommendation plan shall be developed by or under the supervision of a member of the professional staff in partnership with the individual. The initial service recommendation plan identifies the individual's primary service needs and a list of services in which he or she will participate and remains valid for up to 60 days or until the IRP is completed. The initial service recommendation plan shall be considered part of the admission documentation and shall be maintained in the case record as a separate document, distinct from the IRP.

(9) When admission is not indicated, a notation shall be made of the following:

(i) the reason for not admitting the individual; and

(ii) any referrals made to other programs or services.

(10) Upon a decision to admit an individual to a PROS program, a recipient attestation form shall be completed. Such form shall be dated and signed by the individual, which indicates his or her choice to participate in the PROS program and specified program components.

(11) Upon admission of an individual and the completion of the recipient attestation form, the PROS program shall complete and submit a PROS registration form, using the registration system approved by the office.

(i) Such registration process must include the identification of the specific PROS program components in which the individual will be participating.

(ii) Individuals may register in multiple PROS programs for unduplicated components of service. However, in no event shall an individual be registered for clinical treatment only.

(12) The PROS admission date for an individual shall be the date that the PROS program submits a completed registration pursuant to this subdivision.

(13) Upon confirmation of acceptance of the registration request on behalf of an individual, such individual shall be considered registered in the PROS program, effective on the date provided by the office. Individuals who are registered in a PROS program are not restricted to the limitations of pre-admission billing pursuant to section 512.11 of this Part.

(14) If a registration request on behalf of an individual is denied, such individual shall be discharged from the PROS program. The discharge summary shall identify any referrals made to other programs or services.

(d) Staffing.

(1) A PROS provider shall continuously employ an adequate number and appropriate mix of clinical staff consistent with the objectives of the program and the intended outcomes. Such staff may include persons who are also recipients of service from a PROS program, subject to the requirements of paragraph (9) of this subdivision and section 512.9 of this Part.

(2) PROS providers shall maintain an adequate and appropriate number of professional staff relative to the size of the clinical staff.

(i) A comprehensive PROS provider shall be deemed to have met such standard if at least 40 percent of the total clinical staff full-time equivalents (FTEs) are represented by professional staff.

(ii) A limited license PROS program shall be deemed to have met such standard if at least 20 percent of the total clinical staff FTEs are represented by professional staff.

(3) For the purpose of calculating professional staff ratios, a provider may include staff credentialed by the United States Psychiatric Rehabilitation Association (USPRA) for up to 20 percent of the total number of required professional staff.

(4) For comprehensive PROS programs, at least one of the members of the provider's professional staff shall be a licensed practitioner of the healing arts and shall be employed on a full-time basis.

(5) For limited license PROS programs, at least one of the members of the provider's professional staff shall be employed on a full-time basis.

(6) IR services shall be provided by, or under the direct supervision of, professional staff.

(7) PROS providers shall maintain an adequate and appropriate number of staff in proportion to the number of individuals served. Providers shall be deemed to have met such standard if their staffing ratios, based on average attendance, are at least in accordance with the following:

(i) for CRS, a ratio of one clinical staff member to every 12 individuals receiving CRS group services;

(ii) for IR, a ratio of one clinical staff member to every eight individuals receiving IR group services;

(iii) for ORS, a case load of no more than 22 individuals per clinical staff member; and

(iv) for comprehensive PROS programs with clinical treatment, the following additional standards shall apply:

(a) PROS staffing must include a minimum of.125 FTE psychiatrist and.125 FTE registered professional nurse for every 40 individuals receiving clinical treatment services; and

(b) additional psychiatry, nursing and other staff shall be included, as necessary, to meet the volume and clinical needs of persons receiving clinical treatment services;

(v) programs may use nurse practitioners in psychiatry to partially offset the requirement for psychiatrist coverage pursuant to clause (iv)(a) of this paragraph, consistent with the following requirements:

(a) all programs must maintain a minimum .125 FTE psychiatrist;

(b) after having met the minimum .125 FTE psychiatrist required in clause (a) of this subparagraph, programs may elect to substitute nurse practitioner in psychiatry FTE for the additional required psychiatrist FTE at a ratio not to exceed 50 percent of the total psychiatry requirement;

(c) programs must ensure clinical collaboration between the nurse practitioner in psychiatry and a psychiatrist who is employed by the sponsor, consistent with New York State Education Law governing the licensure of nurse practitioners;

(d) nurse practitioners used to offset required psychiatrist staffing must be certified as nurse practitioners in psychiatry;

(e) nurse practitioner in psychiatry FTE may not be used to simultaneously satisfy the nurse staffing requirement pursuant to clause (iv)(a) of this paragraph, and to offset the psychiatrist staffing requirement.

(8) All staff shall be afforded regular supervision. Such supervision shall address quality of care provided and ongoing staff development.

(9) A PROS provider may use recipient employees. In such circumstances, the following requirements shall apply:

(i) Recipient employees shall be included in the PROS provider's staffing plan.

(ii) PROS participants may perform a variety of non-paid functions related to the operation of the program as part of the program's therapeutic environment when such functions are identified in the person's individualized recovery plan. Non-paid functions of PROS participants shall not be reflected in the PROS provider's staffing plan.

(iii) Recipient employees shall adhere to the same requirements, pursuant to this Part, which are applicable to other PROS employees.

(iv) Recipient employees shall receive training regarding the principles and requirements of confidentiality, ethics and boundaries, and work place harassment.

(v) Ongoing supervision of recipient employees shall address, as warranted, boundary issues, transition between roles, and potential conflicts of interest.

(e) Individualized recovery planning process.

(1) The individualized recovery planning process shall be carried out by, or under the direct supervision of, a member of the professional staff. Such process is intended to be reflective of person-centered planning principles and shall therefore be conducted in collaboration with the individual and any persons the individual has identified for participation.

(2) The individualized recovery planning process shall address the differences in individuals' cognitive abilities and/or learning style, culture, gender, age and other issues that may impact service delivery.

(3) The individualized recovery planning process shall include, but not be limited to, the following activities:

(i) meetings with the PROS participant and relevant others;

(ii) identification and completion, within 45 days of the individual's admission date, of all required screenings or assessments, as determined based on the PROS Components in which the individual has enrolled;

(iii) linkage and coordination activities with other service providers for the purpose of assessing plan progress and assuring integration of services; and

(iv) development of an individualized recovery plan (IRP).

(4) An initial IRP shall be developed within 60 days of the individual's admission date.

(5) Each individual's IRP shall be reviewed for progress as follows:

(i) Six month review and update of the IRP: programs are required to conduct a review and update of the IRP at least every six months or sooner if conditions warrant it. This review and update should result in a new IRP reflective of the individual's progress or lack of progress toward his or her goal and must be signed by all required parties, including:

(a) PROS participant;

(b) clinical staff member who prepared the IRP;

(d) physician or nurse practitioner in psychiatry, if the individual is enrolled in the clinical component.

(ii) Three month review of IR/ORS services: reviews must be conducted every three months to determine the need for continuation of IR or ORS services. This review concerns the continuation of the IR or ORS services and does not require that the complete IRP be reviewed.

(6) Each IRP Review should result in an IRP Review Summary. This summary provides the justification for any changes to be made within the IRP and/or justification for parts of the IRP that will remain the same for the next review period.

(7) For individuals receiving IR or ORS services, the IR or ORS services identified in the IRP shall be assessed for continued need, at a minimum, every three months. The decision to continue or discontinue the service shall be documented and include the following:

(i) reason for the decision;

(ii) signature of the individual; and

(iii) signature of the clinical staff member assessing the need for continued service. If the clinical staff member who conducted the assessment is not a member of the professional staff, the signature of the professional staff member who supervised the staff member must also be recorded.

(8) If a PROS participant is receiving PROS services from multiple PROS providers:

(i) the provider of CRS services shall be responsible for forwarding copies of the IRP and related updates to the provider of IR or ORS services; and

(ii) the provider of IR or ORS services shall be responsible for developing an IR or ORS plan which shall be a component of the IRP, and which is consistent with the IRP developed by the provider of CRS services.

(9) If a PROS participant receives PROS services only from one PROS provider, and receives only IR or ORS services, the provider of IR or ORS services shall be responsible for the completion, review and update of an IRP pursuant to the requirements of this subdivision.

(10) If a PROS participant receives solely ORS services from a comprehensive PROS, the provider shall be responsible only for completing a psychiatric rehabilitation assessment with an employment focus and for developing an IRP that is reflective of an employment support goal. The provider is not required to complete a relapse prevention plan with the individual, but may do so. All other documentation requirements still pertain.

History

Amended New York State Register August 26, 2015/Volume XXXVII, Issue 34, eff. 8/26/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.8 Documentation

(a) Case records.

(1) There shall be a complete case record maintained for each person admitted to a PROS program. Such case record shall be maintained in accordance with recognized and acceptable principles of recordkeeping as follows:

(i) any case record entries shall be legible and non-erasable;

(ii) case records shall be periodically reviewed for quality and completeness; and

(iii) all entries in case records shall be dated and signed by appropriate staff.

(2) The case record shall be available to all staff who are providing services to the individual, and to any staff who have need for access, consistent with State and Federal confidentiality requirements.

(3) The case record shall include the following information:

(i) any pre-admission screening notes;

(ii) identifying information and history;

(iii) mental illness diagnosis;

(iv) required assessments based on enrollment in specific PROS components;

(v) for individuals receiving clinical treatment component services from the PROS program, an assessment of the individual's psychiatric and physical needs, and dated and signed records of all medications prescribed;

(vi) for individuals who are receiving integrated dual disorder treatment from the PROS program and clinical treatment services from a source other than the PROS program, documentation that the services provided by the clinic are integrated with those provided by the PROS program, including, at a minimum, the ongoing exchange of information, documentation of progress and outcomes related to the services provided by the clinic, and the name of the treating psychiatrist or nurse practitioner at such clinic who will be collaborating with a designated member of the PROS clinical staff;

(vii) reports of any mental and physical diagnostic exams, tests and consultations;

(viii) screening and admission note;

(ix) attestation form;

(x) initial services recommendation plan;

(xi) the individualized recovery plan (IRP), IRP service addition form, and all reviews of the IRP;

(xii) documentation satisfying the requirements in subdivision (d) of this section;

(xiii) dated progress notes;

(xiv) any referrals to other programs and services;

(xv) any consent forms; and

(xvi) discharge plan and/or summary, as appropriate.

(4) Case records may include relevant history and assessment documents completed by other providers of service.

(5) For persons who are discharged from a PROS program and referred to another provider, the discharge summary shall be transmitted to the receiving program within two weeks.

(6) Case records shall be retained for a minimum of six years following an individual's discharge from the program.

(b) Individualized recovery plan (IRP).

(1) Each individual's IRP shall include, at a minimum, the following:

(i) a description of the individual's strengths as identified in the summary of findings provided in each required assessment;

(ii) a description of the barriers created by the individual's mental illness that prevent the individual's achievement of his or her stated goals, as identified in the summary of findings provided in each required assessment;

(iii) a statement of the individual's recovery goals and program participation objectives;

(iv) an individualized course of action to be taken, including the specific services to be provided, the expected frequency of service delivery, the expected duration of the course of service delivery, and the anticipated outcome;

(v) for individuals receiving IR, ORS or clinical treatment services, the IRP shall identify the reasons why these services are needed, in addition to CRS services, to achieve the individual's recovery goals;

(vi) criteria to determine when goals and objectives have been met so that the individual can move forward in his or her recovery process;

(vii) the identification of any collaterals who will assist the individual in his or her recovery;

(viii) a relapse prevention plan, which includes a description of the individual's preferences regarding treatment and any PROS services that may be used in the event of a crisis;

(ix) any other advance directives or preferences expressed by the individual;

(x) description and goals of any linkage and coordination activities with other service providers;

(xi) for PROS participants receiving treatment services from a clinic licensed pursuant to Part 599 of this Title, a description of how such services are integrated with the individual's IRP; and

(xii) required signatures obtained within seven days of the date that the IRP is developed, as follows:

(a) the PROS participant's signature; in situations where the individual is out of contact with the program due to hospitalization or other issue, signature should be obtained upon the individual's return to the program;

(b) the signature of the clinical staff member who prepared the IRP;

(c) if the clinical staff member who prepared the IRP is not a member of the professional staff, the signature of the professional staff member supervising or participating in the IRP process shall also be included; and

(d) for persons receiving clinical treatment, the IRP shall include a physician's signature or the signature of a nurse practitioner in psychiatry.

(2) The inclusion of all required staff's signatures on the IRP is a representation that the identified PROS services are deemed to be medically necessary.

(3) An IRP is considered completed when all required staff signatures are provided. The latest date of signature is the IRP's official completion date.

(4) Services may be provided on an interim basis and be considered part of the IRP by completing a service addition form or documenting the need for a new service or change in a service on a progress note. If the new or revised service continues after scheduled periodic review of the IRP, the service must be identified on the IRP. The service addition form or the progress note must include the following:

(i) the name of the service(s) to be provided and the reason for the service(s) addition;

(ii) the signature of the individual and a member of the clinical staff; and

(iii) for clinical treatment services, the signature of the psychiatrist or nurse practitioner in psychiatry.

(1) Progress notes shall be maintained for each individual and shall be dated, signed by a clinical member of the PROS program staff, and indicate the period of time covered by the note.

(2) Progress notes shall include, at a minimum:

(i) a summary of services received subsequent to the last progress note;

(ii) a description of the progress made toward the goals identified in the IRP subsequent to the last progress note; and

(iii) identification of any necessary changes to the IRP and services related to such changes.

(3) Progress notes shall be completed, at a minimum, once each month.

(4) A progress note must also be completed for any significant event and/or unexpected incident.

(d) Supporting documentation.

(1) The PROS program shall maintain documentation for each participant indicating:

(i) duration of on-site and off-site program participation per day;

(ii) types and numbers of PROS services provided per day; and

(iii) upon request, capacity to provide the number of PROS units per person, per day, per month.

(2) The PROS program shall maintain a daily program schedule that includes scheduled meal periods and planned recreational activities.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.9 Organization and administration

(a) The provider of service shall identify a governing body, which shall have overall responsibility for the operation of the program. The governing body may delegate responsibility for the day-to-day management of the program to appropriate staff pursuant to an organizational plan approved by the office.

(b) In programs operated by not-for-profit corporations other than hospitals licensed pursuant to article 28 of the Public Health Law, no person shall serve as a member of the governing body and of the paid staff of the program without prior approval of the office.

(1) to meet at least four times a year;

(2) to review, approve and maintain minutes of all official meetings;

(4) to review the program's compliance with the terms and conditions of its operating certificate, applicable laws and regulations;

(5) to design and operate the program consistent with and appropriate to the ethnic and cultural background of the population to be served by the PROS program;

(6) to develop a mechanism for PROS program participants, and any individuals they identify, to participate in the development and ongoing review of the IRP;

(7) to develop, approve, and periodically review and revise as appropriate, all programmatic and administrative policies and procedures. Such policies and procedures shall include, but are not limited to, the following:

(i) written personnel policies which shall prohibit discrimination on the basis of race, color, creed, disability, sex, marital status, age, national origin or sexual orientation, and the applicable obligations imposed by: title VII of the Civil Rights Act; Federal Executive Order 11246; the Rehabilitation Act of 1973, section 504; the Vietnam Era Veteran's Readjustment Act; the Federal Age Discrimination in Employment Act of 1967; the Federal Equal Pay Act of 1963; the Americans with Disabilities Act of 1990; and the State Human Rights Law (Executive Law, article 15);

(ii) written policies, applicable to job applicants and volunteers, which shall provide for verification of employment history, personal references, work record and qualifications, as well as documentation of compliance with Part 550 of this Title-- criminal history records check;

(iii) written policies and procedures, when applicable, concerning the prescription and administration of medication which shall be consistent with applicable Federal and State laws and regulations;

(iv) written policies and procedures regarding the confidentiality of individuals' records consistent with applicable Federal and State laws and regulations, and the appropriate retention of such records;

(v) written criteria for admission and discharge from the program;

(vi) written policies and procedures regarding the mandatory reporting of child abuse or neglect;

(vii) written policies and procedures describing an incremental grievance process that addresses the timely review and resolution of individuals' complaints, including documentation thereof, and which provides a process enabling individuals to request review by the provider's governing body, and ultimately the Office of Mental Health, when resolution is not satisfactory;

(viii) written policies and procedures regarding the use of recipient employees that address, at a minimum, the requirements pursuant to section 512.7(d)(9) of this Part; and

(ix) standards of conduct which shall be delineated for all staff in regard to relationships with PROS participants consistent with OMH guidance.

(d) Restraint and seclusion shall not be utilized in programs governed by this Part. Each PROS program must have ongoing education and training and must demonstrate competence in techniques and alternative methods of safely handling crisis situations. In situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, nothing in this section shall be construed to prohibit the use of reasonable physical force when necessary to protect the life and limb of any person.

(e) Individuals' participation in research shall only occur in accordance with applicable Federal and State requirements.

(f) A provider of service shall report, investigate, review, monitor and document incidents in accordance with section 29.29 of the Mental Hygiene Law and Part 524 of this Title.

(g) There shall be an emergency evacuation plan and staff shall be trained about its procedures.

(h) There shall be a written utilization review procedure to monitor the appropriateness of service provision.

(i) The provider of service shall participate as required with the local governmental unit in local planning processes pursuant to sections 41.05 and 41.16 of the Mental Hygiene Law. At a minimum, such participation shall include:

(1) provision of budget and planning data as requested by the local governmental unit;

(2) identification of the population being served by the program;

(3) identification of the geographic area being served by the program;

(4) description of the program's relationship to other providers of service including, but not limited to, a description of all written agreements entered into pursuant to this Part; and

(5) provision of copies to the local governmental unit of any plans or documents submitted to the office for approval pursuant to this Part at the time of such submission to the office. The provider of service shall consult with the local governmental unit prior to the submission of any such plans or documents and, to the extent practicable, prior to any changes or alterations to the PROS program not otherwise addressed in such plans or documents.

(j) In programs that are not operated by a unit of New York State government, there shall be an annual audit, pursuant to a format prescribed by the office, of the financial condition and accounts of the program performed by a certified public accountant who is not a member of the governing body or an employee of the program. Government-operated programs shall comply with applicable laws concerning financial accounts and auditing requirements.

(k) The provider of service shall establish mechanisms for the meaningful participation of current or former recipients of service either through direct participation on the governing body, or through the creation of an advisory board. If an advisory board is used, the provider of service shall establish a mechanism for the advisory board to make recommendations to the governing body.

(l) The provider of service shall establish mechanisms for priority access by individuals, referred to the provider, who are enrolled in an assisted outpatient treatment program established pursuant to section 9.60 of the Mental Hygiene Law. Prior to the discharge by a provider of service of an individual who is also enrolled in an assisted outpatient treatment program, the provider of service shall notify the individual's case manager and the director of the assisted outpatient treatment program.

(m) The provider of service shall establish mechanisms that promote the competency of its workforce.

(n) The provider of service shall maintain adequate information in personnel files concerning the scope of activities for workforce development, additional certificate or academic programs which staff have engaged in while employed, and special credentialing that staff have achieved to obtain necessary competencies.

(o) Comprehensive PROS programs with clinical treatment shall have a mechanism to provide, or arrange for, face-to-face contact with individuals enrolled in the program who need assistance when the program is not in operation.

(p) Comprehensive PROS programs without clinical treatment shall develop a plan for appropriately responding to individuals enrolled in the program who need assistance when the program is not in operation. Such plan shall be subject to approval by the office.

(q) The PROS program shall develop a plan that addresses continuity of care within the mental health system and other service systems (e.g., social services, health care, alcoholism and substance abuse services, local correctional systems). The plan shall be included in the case record and must include a protocol for the development and monitoring of coordination and integration between the PROS provider and outside service providers. Such plan shall be subject to approval by the office.

(r) Upon the request of the office, or upon the request of the local governmental unit with which the provider has an agreement in accordance with section 512.14(b) of this Part, each provider of service shall furnish any and all information and records concerning the operation and administration of the program including, but not limited to, information regarding the program or services, person-specific services, performance indicators, contracts or other agreements and statistical, administrative and fiscal operations.

(s) Providers shall comply with applicable data submission requirements identified by the office.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.10 Rights of pros participants

(a) Individuals participating in a PROS program certified pursuant to this Part are entitled to the rights defined in this subdivision. A provider of service shall be responsible for the protection of these rights.

(1) Individuals participating in a PROS program have the right to an individualized recovery plan and to participate to the fullest extent consistent with his or her capacity in the establishment and revision of that plan.

(2) Individuals have the right to a full explanation of the services provided in accordance with their IRP.

(3) Participation in a PROS program is voluntary and individuals are presumed to have the capacity to consent to such participation. The right to participate voluntarily in and to consent to participation in a PROS program shall be limited only pursuant to a court order in accordance with applicable provisions of law.

(4) The confidentiality of individuals' clinical records shall be maintained in accordance with section 33.13 of the Mental Hygiene Law and applicable Federal law and regulations.

(5) PROS participants and other qualified persons shall be assured access to their clinical records consistent with section 33.16 of the Mental Hygiene Law and applicable Federal law and regulations.

(6) Individuals have the right to receive clinically appropriate care and treatment that is suited to their needs and skillfully, safely and humanely administered with full respect for their dignity and personal integrity.

(7) Individuals have the right to receive services in a non-discriminatory manner, and to be treated in a way that acknowledges and respects their cultural environment.

(8) Individuals have the right to a maximum amount of privacy consistent with the effective delivery of services.

(9) Individuals have the right to freedom from abuse and mistreatment by staff.

(10) Individuals have the right to be informed of the provider's grievance policies and procedures, and to initiate any questions, complaints or objections accordingly.

(b) A provider of service shall provide a notice of rights as described in subdivision (a) of this section to each individual upon admission to a PROS program. Such notice shall be provided in writing and posted in a conspicuous location easily accessible to the public. The notice shall include the address and telephone number of the Commission on Quality of Care and Advocacy for Persons with Disabilities, the nearest regional office of the Protection and Advocacy for Individuals with Mental Illness Program, the nearest chapter of the National Alliance for Individuals with Mental Illness- New York State, the local governmental unit, and the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.11 Medicaid reimbursement

(a) General reimbursement requirements for PROS providers.

(1) Reimbursement shall be made only for individuals who:

(i) are in pre-admission status pursuant to section 512.7(c)(4) of this Part;

(ii) are registered in a PROS program pursuant to section 512.7(c)(13) of this Part; or

(iii) are collaterals of persons who are registered in a PROS program, or are in pre-admission status.

(2) Unless an individual is registered with a PROS program pursuant to section 512.7(c) of this Part, reimbursement is limited to the pre-admission monthly base rate, consistent with section 512.12(e) of this Part.

(3) For purposes of reimbursement for individuals enrolled in Medicaid managed care, a PROS program is considered to be a carved-out service.

(4) When available and appropriate, PROS providers shall maximize the use of funding from the Office of Vocational and Educational Services for Individuals with Disabilities (VESID). Time spent in such funded activities shall not be included in the duration of program participation pursuant to paragraph (b)(4) of this section.

(5) In order to be eligible for reimbursement, any PROS service provided to a PROS participant in the participant's employment setting and any ORS service shall be on a one-to-one basis.

(b) Reimbursement for comprehensive PROS programs.

(1) A comprehensive PROS program shall be reimbursed on a monthly case payment basis.

(2) The reimbursement structure for a comprehensive PROS program consists of the following four elements:

(i) monthly base rate;

(ii) IR component add-on;

(iii) ORS component add-on; and

(iv) clinical treatment component add-on.

(3) The basic measure for the PROS monthly base rate is the PROS unit. PROS units are accumulated during the course of each day that the individual participates in the PROS program, and are aggregated up to a monthly total to determine the amount of the PROS monthly base rate that can be billed for the individual during a particular month.

(4) The PROS unit is determined by the duration of program participation, which includes a combination of on-site and off-site program participation and service frequency as defined in section 512.4 of this Part.

(5) Program participation is measured and accumulated in 15 minute increments. Increments of less than 15 minutes must be rounded down to the nearest quarter hour to determine the program participation for the day.

(6) Medically necessary PROS services include:

(i) assessment services;

(ii) crisis intervention services;

(iii) engagement services;

(iv) individualized recovery planning services;

(v) pre-admission screening services provided during pre-admission status and documented in a pre-admission screening note;

(vi) services delineated in the screening and admission note pursuant to section 512.7(c)(7) of this Part, which are provided subsequent to the individual's admission date, but prior to the completion of the initial IRP, and documented in the progress note; and

(vii) services identified in, and provided in accordance with, the individual's IRP.

(7) If a recipient employee provides a medically necessary service to other participants in the PROS program, such service may be included in the calculation of PROS units for such participants, as applicable. However, such service may not be included in the calculation of PROS units for the recipient employee.

(8) In order to accumulate any PROS units for a day, a PROS program must deliver a minimum of one medically necessary PROS service to an individual or collateral during the course of the day.

(9) PROS units are accumulated in intervals of 0.25. The maximum number of PROS units per individual per day is five.

(10) The formula for accumulating PROS units during a program day is as follows:

(i) If one medically necessary PROS service is delivered, the number of PROS units is equal to the duration of program participation, rounded down to the nearest quarter hour, or two units, whichever is less.

(ii) If two medically necessary PROS services are delivered, the number of PROS units is equal to the duration of program participation, rounded down to the nearest quarter hour, or four units, whichever is less.

(iii) If three or more medically necessary PROS services are delivered, the number of PROS units is equal to the duration of program participation, rounded down to the nearest quarter hour, or five units, whichever is less.

(11) To satisfy the service frequency requirement of this Part, services must be provided in accordance with the following:

(i) services provided in a group format shall be at least 30 minutes in duration; and

(ii) services provided in an individual modality shall be at least 15 minutes in duration.

(12) When a medically necessary CRS service is provided in a group format, such service shall not be used to satisfy the service frequency requirement of this Part for more than 12 members of the group per each participating staff member.

(13) To determine the monthly base rate, the daily PROS units accumulated during the calendar month are aggregated and translated into one of five payment levels, in accordance with section 512.12(e) of this Part.

(14) A minimum of two PROS units must be accrued for an individual during a calendar month in order to bill the monthly base rate.

(1) The three component add-ons pursuant to paragraph (b)(2) of this section are provided in recognition that certain activities involve increased costs due to their intensity or the need for specialized staff expertise.

(i) Up to two component add-ons may be billed per individual per month.

(ii) In no event shall an ORS component add-on and an IR component add-on be billed in the same month for the same individual.

(iii) Component add-ons shall not be billed prior to the calendar month in which the individual is registered with the PROS program.

(2) Intensive rehabilitation.

(i) In order to bill the IR component add-on, an individual must have received at least six PROS units during the month, including at least one IR service, as identified in section 512.7(b)(4) of this Part.

(ii) When a medically necessary IR service, other than family psychoeducation/intensive family support, is provided in a group format, such service shall not be used to satisfy the service frequency requirement of this Part, or the IR service requirement of subparagraph (i) of this paragraph, for more than eight members of the group.

(iii) When a medically necessary family psychoeducation/intensive family support IR service is provided in a group format, such service shall not be used to satisfy the service frequency requirement of this Part, or the IR service requirement of subparagraph (i) of this paragraph, for more than 16 members of the group.

(iv) Medicaid may reimburse the IR component add-on for up to 50 percent of a provider's total number of monthly base rate bills submitted annually.

(v) In instances where a comprehensive PROS program provides IR services to an individual, but CRS services are provided by another provider of service or no CRS services are provided in the month, the comprehensive PROS provider shall submit an IR-only bill. When an IR-only bill is submitted, the minimum six PROS units required pursuant to subparagraph (i) of this paragraph shall be limited to the provision of IR services.

(3) Ongoing rehabilitation and support.

(i) PROS programs may only bill the ORS component add-on for individuals who work in an integrated competitive job for a minimum of 10 hours per week. However, to allow for periodic absences due to illness, vacations, or temporary work stoppages, individuals who are scheduled to work at least 10 hours per week and have worked at least one week within the month for 10 hours qualify for reimbursement.

(ii) A minimum of two face-to-face contacts with the individual and/or identified collateral, which include ongoing rehabilitation and support services, must be provided per month. A minimum contact is 30 continuous minutes in duration. At least two of the face-to-face contacts must occur on separate days. A contact may be split between the individual and the collateral. At least one visit per month shall be with the individual only.

(iii) In instances where a comprehensive PROS program provides ORS services to an individual, but CRS services are provided by another provider of service or no CRS services are provided in the month, the comprehensive PROS provider shall submit an ORS-only bill. Notwithstanding paragraph (b)(15) of this section, the minimum service requirement for submission of an ORS-only bill shall be consistent with subparagraph (ii) of this paragraph.

(4) Clinical treatment.

(i) In order to bill the clinical treatment add-on, a minimum of one clinical treatment service, as identified in section 512.7(b)(9) of this Part, must be provided during the month.

(ii) Individuals receiving clinical treatment must have, at a minimum, one face-to-face contact with a psychiatrist or nurse practitioner in psychiatry every three months, or more frequently as clinically appropriate. Such contact during any of the first three calendar months of the individual's admission will enable billing for the month of contact, any preceding months in which the client has been registered with the PROS program, and the two months following the month of contact. Thereafter, each month that contains a contact with a psychiatrist or nurse practitioner in psychiatry will enable billing for that month and the next two months.

(iii) The clinical treatment component may only be reimbursed in conjunction with the monthly base rate and/or the intensive rehabilitation or ongoing rehabilitation and support add-on.

(iv) If it is clinically appropriate to deliver a clinical treatment service in a group format, the group size limitations for CRS services in sections 512.7(b)(3) and 512.11(b)(13) of this Part shall apply.

(d) Reimbursement for limited license PROS programs.

(1) A limited license PROS program shall be reimbursed on a monthly case payment basis.

(2) A limited license PROS program may be reimbursed in a given month for either one monthly IR component or one monthly ORS component per individual.

(3) To bill the IR component on behalf of an individual, the individual must participate in at least six units of IR services per month.

(4) To bill the ORS component on behalf of an individual, notwithstanding paragraph (b)(15) of this section, a minimum of two face-to-face contacts per month must be provided. A minimum contact is 30 continuous minutes in duration. At least two of the face-to-face contacts must occur on separate days.

(5) PROS programs may only bill the ORS component for individuals who work in an integrated competitive job for a minimum of 10 hours per week. However, to allow for periodic absences due to illness, vacations, or temporary work stoppages, individuals who are scheduled to work at least 10 hours per week and have worked at least one week within the month for 10 hours qualify for reimbursement.

(e) Reimbursement for pre-admission program participation.

(1) Reimbursement for individuals who are in continuous pre-admission status is limited to two consecutive months, whether or not the individual is ultimately admitted to the program.

(i) If pre-admission program participation occurs in the month preceding the month of admission, reimbursement cannot exceed the pre-admission monthly base rate pursuant to section 512.12(e) of this Part.

(ii) If pre-admission program participation occurs during the month of admission, but the individual has not been registered in the PROS program during that month, reimbursement cannot exceed the pre-admission monthly base rate pursuant to section 512.12(e) of this Part.

(2) If pre-admission program participation occurs during the month of admission, the pre-admission program participation may be included in the total number of PROS units accumulated during the calendar month.

(3) In no event shall the use of the pre-admission monthly base rate exceed two consecutive months per individual.

(f) Co-enrollment limitations.

(1) General rules.

(i) When an individual is registered in a PROS program, Medicaid reimbursement for participation in other community-based programs may be limited, depending upon the level of PROS participation and the category of the community-based program. This subdivision describes the conditions under which Medicaid will pay for those services.

(ii) If an individual is in pre-admission status pursuant to section 512.7(c) of this Part, the co-enrollment limitations described in this subdivision are not applicable. This exception shall be limited to two consecutive calendar months for each pre-admission episode.

(iii) When co-enrollment is otherwise permitted by this Part, participation in multiple programs may occur on the same day.

(iv) In some instances, the PROS registration system can be used to enforce the co-enrollment rules described in this subdivision. In those circumstances, the registration system precludes initial payment to providers other than the PROS provider with whom an individual is registered. In circumstances in which the PROS registration system cannot be used to enforce the co-enrollment rules described in this subdivision, any post-payment recoveries will be conducted pursuant to subdivision (g) of this section.

(v) If an individual is registered in a Medicaid-eligible program that has a restriction/ exception code or a Medicaid coverage code in the Welfare Management System and the New York State Department of Health has designated the program as not eligible for co-enrollment with the PROS program, the PROS program shall not receive reimbursement.

(2) Multiple PROS programs. Medicaid may reimburse for unduplicated components of service provided to an individual in a given month in multiple PROS programs. However, Medicaid shall not reimburse an IR component and an ORS component in a given month for the same individual.

(3) OMH-licensed or Office for People With Developmental Disabilities (OPWDD)- licensed clinic and PROS program.

(i) Medicaid shall not reimburse for both clinical treatment services provided to an individual in a given month in the clinical treatment component of a comprehensive PROS program and a clinic licensed pursuant to Part 599 or Part 679 of this Title.

(ii) Medicaid may reimburse for services provided to a PROS participant in a given month in a clinic as long as the individual is not registered in the PROS clinical treatment component

(iii) Medicaid may reimburse for services provided to an individual in a given month in both a limited license PROS program and a clinic licensed pursuant to Part 599 or Part 679 of this Title.

(4) OMH-licensed continuing day treatment (CDT) program and PROS program.

(i) Medicaid shall not reimburse for both services provided to an individual in a given month in a comprehensive PROS program and a CDT program licensed pursuant to Part 587 of this Title.

(ii) Medicaid may reimburse for the IR or ORS components of service provided to an individual in a given month in a limited license PROS program and for services provided in a CDT program licensed pursuant to Part 587 of this Title only if the CDT provider and the PROS provider are not operated by the same sponsor.

(5) OMH-licensed partial hospitalization (PH) program and PROS program. Medicaid may reimburse for services provided to an individual in a given month in both a PROS program and a PH program licensed pursuant to Part 587 of this Title.

(6) OMH-licensed intensive psychiatric rehabilitation treatment program (IPRT) and PROS program. Medicaid shall not reimburse for both services in a given month provided in a PROS program and an IPRT.

(7) OMH-licensed assertive community treatment (ACT) program and PROS program.

(i) Medicaid may reimburse for services provided to an individual in both a comprehensive PROS program and an ACT program for no more than three months within any 12-month period.

(ii) Medicaid reimbursement of the PROS provider shall be limited to level 1, 2 or 3 of the PROS monthly base rate.

(iii) Medicaid reimbursement of the ACT provider shall be limited to the partial stepdown payment rate, pursuant to Part 508 of this Title.

(8) Intensive, supportive or blended case management (ICM/SCM/BCM) program and PROS program. Medicaid may reimburse for services in a given month provided in both a PROS program and an ICM/SCM/BCM program.

(9) Pre-paid mental health plan (PMHP) program and PROS program. Medicaid shall not reimburse for both services in a given month provided in a PROS program and a PMHP program.

(10) OPWDD-sponsored pre-vocational or supported employment services and PROS program.

(i) Medicaid shall not reimburse for both services provided to an individual in a given month in the IR component of a PROS program and pre-vocational or supported employment services pursuant to section 635-10.4(c) of this Title.

(ii) Medicaid shall not reimburse for both services provided to an individual in a given month in the ORS component of a PROS program and pre-vocational or supported employment services pursuant to section 635-10.4(c) of this Title.

(11) OPWDD-sponsored day services and PROS program. When medically necessary, Medicaid may reimburse for services provided to an individual in a given month in both OPWDD-licensed day treatment programs pursuant to Part 690 of this Title or OPWDD-sponsored day habilitation services pursuant to section 635- 10.4(b)(2) of this Title and a PROS program. Medicaid reimbursement of a comprehensive PROS provider shall be limited to level 1 or 2 of the PROS monthly base rate.

(12) DOH-licensed outpatient program and PROS program.

(i) Medicaid shall not reimburse for any mental health services provided in a given month in an outpatient program licensed pursuant to article 28 of the Public Health Law to an individual who is registered in a PROS program.

(ii) This paragraph is not applicable to outpatient programs that are licensed by both OMH and DOH.

(g) Post-payment audits and recoveries.

(1) In circumstances in which the PROS registration system cannot be used to enforce the co-enrollment rules pursuant to subdivision (f) of this section, or other reimbursement limitations described in this Part, providers will be subject to post-payment audits and recoveries in accordance with this subdivision.

(2) If Medicaid provided reimbursement to a PROS program that was not authorized pursuant to subparagraph (c)(2)(iv) of this section, the program is not entitled to retain Medicaid reimbursement for the IR component add-on in excess of the 50 percent limit.

(3) If Medicaid provided reimbursement to a PROS program and/or a clinic program that was not authorized pursuant to paragraph (f)(3) of this section, and both the PROS program and the clinic program are operated by the same sponsor:

(i) If both programs received reimbursement for the same individual, the clinic program is not entitled to retain any of the funds paid to the clinic program on behalf of that individual.

(ii) If only the clinic program received reimbursement for an individual who is registered in the PROS program, the clinic program is not entitled to retain any of the funds paid to the clinic program on behalf of that individual in excess of the amount of the PROS clinical treatment component add-on, described in section 512.12(e)(1) of this Part.

(4) If Medicaid provided reimbursement to both a PROS program and a CDT program operated by the same sponsor that was not authorized pursuant to paragraph (f)(4) of this section, the CDT program is not entitled to retain any of the funds paid to the CDT program in a given month on behalf of the same individual.

(5) If Medicaid provided reimbursement to both a PROS program and an IPRT program operated by the same sponsor that was not authorized pursuant to paragraph (f)(6) of this section, the IPRT program is not entitled to retain any of the funds paid to the IPRT program in a given month on behalf of the same individual.

(6) If Medicaid provided reimbursement to a PROS program and an ACT program that are not authorized pursuant to paragraph (f)(7) of this section, such providers are not entitled to retain such reimbursement as follows:

(i) If reimbursement to the PROS provider exceeds three months within a 12- month period, the PROS provider is not entitled to retain any reimbursement in excess of three months.

(ii) If reimbursement to the PROS provider exceeds level 3 of the monthly base rate, the PROS provider is not entitled to retain any amounts in excess of level 3 of the monthly base rate.

(iii) If reimbursement to the ACT provider exceeds the partial stepdown payment rate, the ACT provider is not entitled to retain any funds paid to the ACT provider in excess of the allowable payment.

(7) If Medicaid provided reimbursement to a PROS program and a PMHP program that was not authorized pursuant to paragraph (f)(9) of this section, the PMHP program is not entitled to retain the equivalent of any funds paid to the PROS provider, up to the amount paid to the PMHP provider on behalf of the same individual.

(8) If Medicaid provided reimbursement to a PROS program and an OPWDD-sponsored pre-vocational or supported employment program that was not authorized pursuant to paragraph (f)(10) of this section, the PROS provider is not entitled to retain the IR or ORS component add-on.

(9) If Medicaid provided reimbursement to a PROS program and an OPWDD-sponsored day program that was not authorized pursuant to paragraph (f)(11) of this section, the PROS provider is not entitled to retain any amounts in excess of level 2 of the monthly base rate.

(10) If Medicaid provided reimbursement to a PROS program and a DOH-licensed program that was not authorized pursuant to paragraph (f)(12) of this section, the DOH-licensed program is not entitled to retain any of the funds paid to the DOH-licensed program for mental health services on behalf of that individual.

(11) In the event that the PROS registration system fails to enforce the reimbursement limitations pursuant to this Part, the State reserves the right to recover any duplicative or improper payments.

History

Amended New York State Register January 29, 2020/Volume XLII, Issue 04, eff. 1/29/2020

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.13 Premises

(a) The provider of service shall maintain premises that are adequate and appropriate for the safe and effective operation of a PROS program in accordance with the following:

(1) A PROS program shall allocate adequate space for the number of persons served by the program.

(2) All PROS programs shall provide for sufficient types and arrangements of spaces to provide individual and group activities consistent with the program's capacity and purpose.

(3) All comprehensive PROS programs offering clinical treatment shall provide for controlled access to and maintenance of medication and supplies in accordance with applicable Federal and State laws and regulations.

(4) All PROS programs shall provide for controlled access to and maintenance of records.

(5) All PROS programs shall provide for appropriate furnishings and equipment consistent with the purpose of the program.

(b) The provider of service shall possess a certificate of occupancy in accordance with the Building Code of New York State and the Property Maintenance Code of New York State (19 NYCRR Chapter XXXIII, Subchapter A, Parts 1221 and 1226) or comparable local codes.

(c) The provider of service shall consider the use of appropriate features and equipment that enable the accessibility of persons with physical disabilities, consistent with the population being served by the program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.14 Quality improvement

(a) The provider of service shall establish a process to collect and analyze data on program and individual outcomes. A process shall be established for the routine use of such data for decision-making purposes. In association with the achievement of individual outcomes and reviews of related processes, providers of service are encouraged to use evidence-based practices.

(b) The office, in conjunction with local governmental units, will develop a plan regarding oversight and evaluation criteria for PROS programs, including the development of performance indicators.

(1) Each local governmental unit shall decide the level of its participation in the oversight and evaluation of PROS programs. Such participation shall include the execution of signed agreements between the local governmental unit and each PROS program in the geographic area served by the local governmental unit. Such provider agreements may include performance indicators specified by the local governmental unit and approved by the office.

(2) If the local governmental unit and the PROS provider are unable to execute an agreement in accordance with paragraph (1) of this subdivision, the office shall review the situation and, if warranted, may execute an agreement directly with the PROS provider. If the office determines that such an agreement will be executed, it will so notify the local governmental unit.

(3) In the event that the PROS program is operated by the local governmental unit, the PROS program shall execute a provider agreement with the office.

(c) Provider agreements executed pursuant to subdivision (b) of this section may include provisions authorizing a withholding of up to 20 percent of the provider's monthly Medicaid payment if the provider fails to comply with applicable data and reporting requirements, operational requirements, or performance indicators. Such withholding of Medicaid payments may be continued until the provider attains compliance, at which time previously withheld funds shall be released to the provider.

(1) In regard to performance indicators which are related to the outcome of individual usage of PROS services, no withholding of Medicaid revenue for an individual PROS provider pursuant to this subdivision shall occur earlier than the 12th month following the month in which the operating certificate issued for that provider becomes effective, or the 12th month following the effective date of the initial agreement developed pursuant to subdivision (b) of this section, whichever is later.

(2) Any withholding of Medicaid payments pursuant to this subdivision does not obviate the authority of the office to initiate other administrative sanctions authorized pursuant to this Title or applicable provisions of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.15 Waivers

(a) Requirements for psychiatric coverage associated with comprehensive PROS programs with clinical treatment may be waived under the following circumstances:

(1) the office, in consultation with the local governmental unit, may approve the use of a physician in lieu of a psychiatrist in circumstances where the PROS program can demonstrate that a psychiatrist is unavailable to meet the requirement. Such physician shall have specialized training or experience in the treatment of mental illness; or

(2) if the requirements of paragraph (1) of this subdivision cannot be met, the office, in consultation with the local governmental unit, may approve a plan for the provision of an equivalent level of care which shall include, but not be limited to, a physician who does not have specialized training or experience in the treatment of persons with mental illness and at least a licensed psychologist, nurse practitioner, registered professional nurse or licensed social worker who is experienced in the treatment of adults with a diagnosis of mental illness.

(b) In the event that the requirements for psychiatric coverage have been waived pursuant to subdivision (a) of this section, the requirement for collaboration with a psychiatrist who is employed by the sponsor in accordance with section 512.7(d)(7)(v)(c) of this Part may be waived in circumstances where the PROS program can demonstrate that a psychiatrist who is not employed by the sponsor is otherwise available to provide such collaboration.

(c) The office, in consultation with the local governmental unit, may approve the use of a professional staff member on less than a full-time basis in a limited license PROS program in circumstances where the PROS program can demonstrate that a professional staff member is unavailable to meet this requirement.

(d) Providers shall apply for waivers in such form as the commissioner shall require. Waivers shall run concurrently with the term of the program's operating certificate. The office, in consultation with the local governmental unit, may renew such waivers based upon a determination that conditions continue to warrant the granting of such waivers.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.16 Transition to part 512

(a) PROS programs shall be implemented in accordance with a schedule established by the Office of Mental Health, in consultation with the local governmental unit.

(b) Outpatient providers which are certified as a continuing day treatment or intensive psychiatric rehabilitation treatment program pursuant to Part 587 of this Title, and are obtaining certification pursuant to this Part, may continue to operate pursuant to the requirements of Part 587 until four months after the effective date of the PROS provider's initial operating certificate issued pursuant to Part 551 of this Title. Notwithstanding this transition period, applicable co-enrollment reimbursement limitations pursuant to section 512.11(f) of this Part shall become effective upon the effective date of the PROS provider's initial operating certificate issued pursuant to Part 551 of this Title. In accordance with the licensure category under which individual reimbursement claims are submitted, providers shall adhere to the applicable documentation and service requirements of either this Part, or Parts 587 and 588 of this Title.

(c) Until such time as the PROS registration system can be used to enforce the co-enrollment limitations established pursuant to this Part, the provisions of section 512.11(g) of this Part, as they relate to the recovery of Medicaid, shall not become effective until three months after the effective date of the PROS provider's initial operating certificate issued pursuant to Part 551 of this Title. Notwithstanding this exception, co-enrollment limitations as they pertain to multiple providers operated by the same sponsor shall become effective upon the effective date of the PROS provider's initial operating certificate issued pursuant to Part 551 of this Title.

(d) To allow a period of adjustment to the professional staffing requirements established pursuant to this Part, staff employed by a provider at the time of its application for an operating certificate pursuant to Part 551 of this Title shall be deemed to have met the requirements of section 512.7(d)(2) of this Part, during the provider's first 18 months of operation, subject to the following conditions:

(1) such staffing plan shall be described in the application for an operating certificate pursuant to Part 551 of this Title;

(2) programs must employ at least one full-time professional staff member; and

(3) when a staff member included in the staffing plan pursuant to paragraph (1) of this subdivision leaves the provider's employment, he or she shall be replaced with an individual who will bring the program closer to compliance with section 512.7(d) of this Part.

(e) The commissioner may permit providers operating pursuant to a PROS operating certificate on or before November 1, 2006, to continue to operate pursuant to the requirements of Part 512 in effect prior to November 1, 2006. Such permission shall be granted only if such providers shall have submitted and the commissioner shall have approved a transition plan setting forth a timetable for complying with the requirements of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.17 Enforcement

(a) A provider of service shall exercise due diligence in complying with the requirements of this Part.

(b) The office shall review the program and practices of the provider of service in order to facilitate determinations as to whether providers are exercising the requisite due diligence and are otherwise in compliance with this Part.

(c) If, based on a review of the program and practices of a provider of service, the office determines that a provider of service is not exercising due diligence in complying with the requirements of this Part, the office shall give notice of the deficiency to the provider of service and may also initiate the following:

(1) request that the provider of service prepare a plan of correction, which plan shall be subject to approval by the office; and

(2) provide such technical assistance as the office deems necessary to assist the provider of service in developing and implementing an appropriate plan of correction.

(d) If the provider of service fails to prepare an acceptable plan of correction within a reasonable time or refuses to permit the office to provide technical assistance or fails to promptly or effectively implement a plan of correction which has been approved by the office, it shall be determined that the provider of service is in violation of this Part.

(e) Upon a determination that a provider of service is in violation of this Part, or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate or impose fines in accordance with applicable provisions of law or regulation.

(f) Nothing in this section shall limit or preclude the commissioner from taking whatever immediate measures may be necessary, including the exercise of his or her authority under Mental Hygiene Law, sections 31.16(b) and 31.28, in the event that an individual's health or safety is in imminent danger or there exists any condition or practice which poses imminent danger to the health or safety of any PROS participant or the public.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.18 Audits

(a) Each provider of services shall comply with Part 552 of this Title--audits of Office of Mental Health licensed or operated facilities, programs or units, which established standards for the administration of audits.

(b) Providers of service shall cooperate during the performance of audits conducted by the New York State Department of Health, and shall provide access to any such records and reports requested.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.19 Behavioral health organizations

Providers shall cooperate with the designated regional behavioral health organizations and shall be authorized pursuant to section 33.13 (d) of the Mental Hygiene Law to exchange clinical information concerning clients with such organizations. Information so exchanged shall be limited to the minimum necessary in light of the reason for the disclosure. Such information shall be kept confidential and any limitations on the release of such information imposed on the party giving such information shall apply to the party receiving such information.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 512.20 Target population services

(a) Individuals who are target population members as defined in Section 512.4 of this Part must meet the standard eligibility criteria for enroll- ment in PROS in accordance with Section 512.7 of this Part.

(b) Effective April 1, 2014, the following additional provisions shall apply to PROS providers that are providing services to target population members.

(1) Reimbursement for services to target population members who are in continuous pre-admission status is limited to four consecutive months, whether or not the individual is ultimately admitted to the program. Programs will be reimbursed for pre-admission services for target population members at the existing pre-admission rate plus 25 percent.

(2) Medicaid may reimburse the Intensive Rehabilitation (IR) component add-on for up to 50 percent of a provider's total number of monthly base rate bills submitted annually. IR services provided to target population members shall not count toward the 50 percent limitation for Medicaid reimbursement.

(3) The following Community Rehabilitation and Support (CRS) services will offer an enhanced reimbursement when delivered off site, on separate days, to target population members:

(i) Basic skills living training;

(ii) Benefits and financial management;

(iii) Community living exploration;

(iv) Information and education regarding self help; and

(v) Wellness self management.

(4) If two or three of the identified CRS services are delivered off site to target population members in a calendar month, programs will be reimbursed at the base rate plus $135.33 (upstate) or $150.37 (downstate), effective April 1, 2015. If four or more of the identified CRS services are delivered off site to target population members in a calendar month, programs will be reimbursed at the base rate plus $270.67 (upstate) or $300.73 (downstate), effective April 1, 2015.

History

Adopted, New York State Register November 12, 2014/Volume XXXVI, Issue 45, eff. 11/12/2014

Part 513 Limits On Administrative Expenses And Executive Compensation

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.1 Background and intent

The purpose of this Part is to implement Executive Order No. 38, issued by Governor Andrew Cuomo on January 18, 2012, by exercising the authority of the Commissioner of the Office of Mental Health to issue regulations governing the use of State funds and State-authorized payments in connection with providing program services to members of the public. E.O. No. 38 provides for a limit on administrative expenses and executive compensation of providers of program services in order to meet the State's ongoing obligation to ensure the proper use of taxpayer dollars and the most effective provision of such services to the public.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.2 Legal base

(a) 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 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 adults diagnosed with mental illness or children diagnosed with emotional disturbance, pursuant to an operating certificate.

(b) Section 7.15 (a) of the Mental Hygiene Law charges the Commissioner of Mental Health with the responsibility for promoting, establishing, developing, coordinating and conducting programs and services for the benefit of persons with mental illness within the funding available for such purposes.

(c) Section 7.15 (b) of the Mental Hygiene Law provides the Commissioner of Mental Health with the authority to cooperate and enter into agreements with other State, local and Federal departments or agencies in fulfilling his or her responsibilities.

(d) Section 31.05 (a) of the Mental Hygiene Law establishes the criteria for the issuance of an operating certificate, including that the premises, equipment, personnel, records, and program are adequate and appropriate to provide services for persons with mental illness.

(e) Section 41.03 of the Mental Hygiene Law provides that the meaning of operating costs shall be in accordance with and subject to the regulations of the Commissioner of Mental Health.

(f) Sections 41.15 and 41.18 of the Mental Hygiene Law provide that the Commissioner of Mental Health has the authority to approve the net operating costs of programs incurred pursuant to an approved local services plan that are eligible for State aid.

(g) Section 41.44 provides that the Commissioner of Mental Health may provide State aid to local governments and to voluntary agencies within amounts available therefor and subject to regulations established by him or her.

(h) Section 43.02 of the Mental Hygiene Law provides that the Commissioner of Mental Health has the power to establish standards and methods for determining rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services, other than inpatient services, provided by facilities, including hospitals, licensed by the Office of Mental Health.

(i) Section 43.02 (b) of the Mental Hygiene Law requires operators of facilities licensed by the Office of Mental Health to furnish such financial, statistical and program information as the commissioner may determine to be necessary.

(j) Executive Order No. 38 directs the commissioner of each executive State agency that provides State financial assistance or State-authorized payments to providers of services, including the Office of Mental Health, to promulgate regulations and take any other actions within the agency's authority, including amending agreements with such providers, to address the extent and nature of a provider's administrative costs and executive compensation that shall be eligible to be reimbursed with State financial assistance or State-authorized payments for operating expenses. Executive Order No. 43 extends the time for agencies to comply with Executive Order No. 38.

(k) Section 508 of the Not-For-Profit Corporation Law provides that a corporation whose lawful activities involve among other things the charging of fees or prices for its services or products shall have the right to receive such income and, in so doing, may make an incidental profit but that all such incidental profits must be applied to the maintenance, expansion or operation of the lawful activities of the corporation, and in no case shall be divided or distributed in any manner whatsoever among the members, directors, or officers of the corporation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.3 Definitions

For purposes of this Part:

(a) Administrative expenses are those expenses authorized and allowable pursuant to applicable agency regulations, contracts or other rules that govern reimbursement with State funds or State-authorized payments that are incurred in connection with the covered provider's overall management and necessary overhead that cannot be attributed directly to the provision of program services.

(1) Such expenses include but are not limited to the following expenses, if otherwise authorized and allowable pursuant to applicable agency regulations, contracts or other rules that govern reimbursement with State funds or State-authorized payments:

(i) that portion of the salaries and benefits of staff performing administrative and coordination functions that cannot be attributed to particular program services, including but not limited to the executive director or chief executive officer, financial officers such as the chief financial officer or controller and accounting personnel, billing, claiming or accounts payable and receivable personnel, human resources personnel, public relations personnel, administrative office support personnel, and information technology personnel, where such expenses cannot be attributed directly to the provision of program services;

(ii) that portion of legal expenses that cannot be attributed directly to the provision of program services; and

(iii) that portion of expenses for office operations that cannot be attributed directly to the provision of program services, including telephones, computer systems and networks, professional and organizational dues, licenses, permits, subscriptions, publications, audit services, postage, office supplies, conference expenses, publicity and annual reports, insurance premiums, interest charges and equipment that is expensed (rather than depreciated) in cost reports, where such expenses cannot be attributed directly to the provision of program services.

(2) Administrative expenses do not include:

(i) capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property; or

(ii) property rental, mortgage or maintenance expenses; or

(iii) taxes, payments in lieu of taxes, or assessments paid to any unit of government; or

(iv) equipment rental, depreciation and interest expenses, including expenditures for vehicles and fixed, major movable and adaptive equipment and equipment that is expensed (rather than depreciated) in cost reports; or

(v) expenses of an amount greater than $10,000 that would otherwise be administrative, except that they are either non-recurring (no more frequent than once every five years) or not anticipated by a covered provider (e.g., litigation-related expenses). Such expenses shall not be considered administrative expenses or program expenses for purposes of this regulation; or

(vi) that portion of the salaries and benefits of staff performing policy development or research.

(b) Covered executive is a compensated director, trustee, managing partner, or officer whose salary and/or benefits, in whole or in part, are administrative expenses, and any key employee whose salary and/or benefits, in whole or in part, are administrative expenses and whose executive compensation during the reporting period exceeded $199,000. For the purposes of this definition, the terms director, trustee, officer, and key employee shall have the same meaning as such terms in the Internal Revenue Service's instructions accompanying Form 990, Part VII. If the number of key employees employed by the covered provider who meet this definition exceeds 10, then the covered provider shall report only those 10 key employees whose executive compensation is the greatest during the reporting period and no other key employees shall be considered covered executives. Clinical and program personnel in a hospital or other entity providing program services, including chairs of departments, heads of service, chief medical officers, directors of nursing, or similar types of personnel fulfilling administrative functions that are nevertheless directly attributable to and comprise program services shall not be considered covered executives for purposes of limiting the use of State funds or State-authorized payments to compensate them. In the event that a covered provider pays a related organization to perform administrative or program services, the covered executives of the related organization shall also be considered covered executives of the covered provider for purposes of reporting and compliance with these regulations if more than 30 percent of such a covered executive's compensation is derived from State funds or State-authorized payments received from the covered provider. In such a circumstance, the related organization shall not be subject to the limitations on the use of State funds or State- authorized payments for administrative expenses in section 513.4 of this Part solely as a result of having covered executives.

(c) Covered operating expenses shall mean the sum of program services expenses and administrative expenses of a covered provider as defined in subdivision (d) of this section.

(d) Covered provider.

(1) A covered provider is an entity or individual that:

(i) has received pursuant to contract or other agreement with the office, or with another governmental entity, including county and local governments, or an entity contracting on its behalf, to render program services, State funds or State-authorized payments during the covered reporting period and the year prior to the covered reporting period, and in an average annual amount greater than $500,000 during those two years; and

(ii) at least 30 percent of whose total annual in-state revenues for the covered reporting period and for the year prior to the covered reporting period were derived from State funds or State-authorized payments. This percentage shall be calculated as a percentage of the total annual revenues derived from and in connection with the provider's activities within New York State, irrespective of whether the provider derives additional revenues from activities in another state. The source of such revenues shall include those from sources outside New York State if such revenues were derived from or in connection with activities inside New York State, including, for example, contributions by out-of-state individuals or entities for in-state activities. Where applicable, a provider's method of calculating in-state revenues for purposes of determining tax liability or in connection with completion of its financial statements shall be deemed acceptable by the office for the purpose of applying this subparagraph.

(2) For purposes of this Part:

(i) an entity or individual that receives State funds or State-authorized payments directly from a managed care organization that is subject to the oversight of the office or another governmental entity shall be deemed to receive State funds or State-authorized payments pursuant to contract or other agreement with the office, or with another governmental entity, to render program services; and

(ii) the method of accounting used by the entity or individual in the preparation of its annual financial statements shall be used, except that an entity or individual that otherwise reports to the office using a different method of accounting shall use such method.

(3) The following providers shall not be considered covered providers:

(i) State, county, and local governmental units in New York State, and tribal governments for the nine New York State recognized nations, and any subdivisions or subsidiaries of the foregoing entities;

(ii) individuals or entities providing child care services who are in receipt of child care subsidies pursuant to title 5-C or section 410 of the Social Services Law, except that such providers may be considered covered providers if they also receive State funds or State-authorized payments that are not child care subsidies pursuant to title 5-C or section 410 of the Social Services Law and would otherwise satisfy the criteria in this definition;

(iii) individual professional(s), partnerships, S corporations, or other entities, at least 75 percent of whose program services paid for by State funds or State-authorized payments are provided by the individual professional(s), by the partner(s), or by the owner(s) of the corporation or entity, rather than by employees or independent contractors employed or retained by the entity, as determined by the amounts obtained in State funds or State-authorized payments for such program services;

(iv) individuals or entities providing primarily or exclusively products, rather than services, in exchange for State funds or State-authorized payments, including but not limited to pharmacies and medical equipment suppliers. For the purpose of applying this exception, the percentage of revenues derived from products rather than from services shall be used; and

(v) entities within the same corporate family as a covered provider, including parent or subsidiary corporations or entities, except where such a corporation or entity would otherwise qualify as a covered provider but for the fact that it has received its State funds or State-authorized payments from a covered provider rather than directly from a governmental agency.

(e) Covered reporting period shall mean the provider's most recently completed annual reporting period, as defined herein, commencing on or after July 1, 2013.

(f) Executive compensation shall include all forms of cash and noncash payments or benefits given directly or indirectly to a covered executive, including but not limited to salary and wages, bonuses, dividends, distributions to a shareholder/partner from the current reporting period's earnings where such distributions represent compensatory or guaranteed payments or compensatory partnership profits allocation or compensatory partnership equity interest for services rendered during such reporting period, and other financial arrangements or transactions such as personal vehicles, housing, below-market loans, payment for personal or family travel, entertainment, and personal use of the organization's property, reportable on a covered executive's W-2 or 1099 form, except that mandated benefits (e.g., Social Security, worker's compensation, unemployment insurance and short-term disability insurance), and other benefits such as health and life insurance premiums and retirement and deferred compensation plan contributions that are consistent with those provided to the covered provider's other employees shall not be included in the calculation of executive compensation. For the purposes of this definition, such benefits shall be considered consistent with those provided to other employees where the intended value of the benefit is substantially equal, even where the cost to the covered provider to provide such a benefit may differ. With respect to employer contributions to retirement and deferred compensation plans that are not consistent with those provided to other employees, executive compensation shall be deemed to include only those amounts contributed or accrued during the reporting period for the benefit or intended benefit of the covered executive, even if not reported on the executive's W-2 or 1099 for that reporting period (but not those amounts that vested during such period but were contributed or accrued prior to the period).

(g) Office means the New York State Office of Mental Health.

(h) Program services are those services rendered by a covered provider or its agent directly to and for the benefit of members of the public (and not for the benefit or on behalf of the State or the awarding agency) that are paid for in whole or in part by State funds or State-authorized funds. Program services shall not include:

(1) policy development or research; or

(2) staffing or other assistance to a State agency or local unit of government in such agency's or government's provision of services to members of the public.

(i) Program services expenses are those expenses authorized and allowable pursuant to applicable agency regulations, contracts or other rules that govern reimbursement with State funds or State-authorized payments that are incurred by a covered provider or its agent in direct connection with the provision of program services.

(i) that portion of the salaries and benefits of staff providing particular program services, including for example, employees or contractors providing direct care to clients, and supervisory personnel and support personnel whose work is attributable to a specific program in whole or in part and contributes directly to the quality or scope of the program services provided;

(ii) that portion of the salaries and benefits of quality assurance and supervisory personnel whose work is attributable in whole or in part to particular programs and contributes to the quality or scope of the program services provided by other personnel and related expenses; and

(iii) that portion of expenses incurred in connection with and attributable to the provision of particular program services, including for example, travel costs to and from client residences, direct care supplies, public outreach or education or personnel training to facilitate program services delivery, information technology and computer services and systems directly attributable to program services such as, for example, electronic patient records systems to facilitate improved patient care or computer systems used in program services delivery or documentation of program services provided, quality assurance and control expenses, and legal expenses necessary to accomplish particular program service objectives.

(2) Program services expenses do not include:

(i) capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property; or

(ii) property rental, mortgage or maintenance expenses, except where such expenses are made in connection with providing housing to members of the public receiving program services from the covered provider; or

(iii) taxes, payments in lieu of taxes, or assessments paid to any unit of government; or

(vi) that portion of the salaries and benefits of staff performing policy development or research.

(j) Related organization shall have the same meaning as the same term in Schedule R of the Internal Revenue Service's Form 990 except that for purposes of this regulation a related organization must have received or be anticipated to receive State funds or State-authorized payments from a covered provider during the reporting period.

(k) Reporting period shall mean, at the provider's option, the calendar year or, where applicable, the fiscal year used by a provider. However, where a provider is required to file an annual cost report with the State, reporting period shall mean the reporting period applicable to said cost report.

(l) State-authorized payments refer to those payments of funds that are not State funds but which are distributed or disbursed upon a New York State agency's approval or by another governmental unit within New York State upon such approval, including but not limited to the Federal and county portions of Medicaid program payments approved by the State agency. The office shall publish a list of government programs whose funds shall be considered State-authorized payments prior to the effective date of this regulation. For purposes of this regulation, State-authorized payments shall not include any payments solely for the following purposes:

(1) procurement contracts awarded on a lowest price basis pursuant to section 163 of the State Finance Law;

(2) awards to State or local units of government except to the extent such funds or payments are used by such government unit to pay covered providers to provide program services through a contract or other agreement;

(3) capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property, or equipment;

(4) direct payments of State funds or State-authorized payments, or provision of vouchers or other items of monetary value that may be used to secure specific services selected by the individual, or health insurance premiums including but not limited to New York State Health Insurance Program (NYSHIP) premium payments, or Supplemental Security Income (SSI) payments, to or on behalf of individual members of the public;

(5) wage or other salary subsidies paid to employers to support the hiring or retention of their employees;

(6) awards to for-profit corporations or other entities engaged exclusively in commercial or manufacturing activities and not in the provision of program services;

(7) policy development or research; or

(8) funds expressly intended to pay exclusively for administrative expenses, including but not limited to Community Service Program core contract funding for HIV/AIDS services programs.

(m) State funds are those funds appropriated by law in the annual state budget pursuant to article VII, section 7 of the New York State Constitution. The office shall publish a list of government programs whose funds shall be considered State funds prior to the effective date of this regulation. For purposes of this Part, State funds shall not include any payments solely for the following purposes:

(1) procurement contracts awarded on a lowest price basis pursuant to section 163 of the State Finance Law;

(3) capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property, or equipment;

(5) wage or salary subsidies paid to employers to support the hiring or retention of their employees;

(6) awards to for-profit corporations or other entities engaged exclusively in commercial or manufacturing activities and not in the provision of program services;

(7) policy development or research; or

(8) funds expressly intended to pay exclusively for administrative expenses, including but not limited to Community Service Program core contract funding for HIV/AIDS services programs.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.4 Limits on administrative expenses

(a) Limits on allowable administrative expenses. No less than 75 percent of the covered operating expenses of a covered provider paid for with State funds or State-authorized payments shall be program services expenses rather than administrative expenses. This percentage shall increase by five percent each year until it shall be no less than 85 percent in 2015 and for each year thereafter. In determining whether an expense is a program service expense or an administrative expense, a covered provider may allocate a portion of the expense to each type if such allocation is supported by the nature of the expense. Such allocation may include allocation of portions of an employee's time and compensation to administrative or program services. Commencing on July 1, 2013, the limits on allowable administrative expenses pursuant to this Part shall be effective and applicable to each covered provider on the first day of each provider's respective covered reporting period.

(b) Subcontractors and agents of covered providers. The restriction on allowable administrative expenses in subdivision (a) of this section, and the reporting requirements in section 513.7 of this Part shall apply to subcontractors and agents of covered providers if and to the extent that such a subcontractor or agent has received State funds or State-authorized payments from the covered provider to provide program or administrative services during the reporting period and would otherwise meet the definition of a covered provider but for the fact that it has received State funds or State-authorized payments from the covered provider rather than directly from a governmental agency. A covered provider shall incorporate into its agreement with such a subcontractor or agent the terms of these regulations by reference to require and facilitate compliance. Upon request, covered providers shall promptly report to the funding or authorizing agency the identity of such subcontractors and agents, along with any other information requested by that agency or by the office or its designee. A covered provider shall not be held responsible for a subcontractor's or agent's failure to comply with these regulations.

(c) Covered providers receiving State funds or State-authorized payments from county or local government or from an entity contracting on its behalf. The office or its designee, rather than the county or local unit of government or an entity contracting on behalf of such government, shall be responsible for obtaining the necessary reporting from and compliance by such covered providers, and shall issue guidance to affected county and local governments to set forth the procedures by which the office or its designee shall do so.

(d) Covered providers with multiple sources of State funds or State-authorized payments. If a covered provider receives State funds or State-authorized payments from multiple sources, the provider's compliance with the restriction on allowable administrative expenses in subdivision (a) of this section shall be determined based upon the total amount of program services expenses and administrative expenses paid for by such funding received from all of such sources. As set forth in section 513.8 of this Part, the covered provider shall report all of such State funds and State-authorized payments, and the expenses paid for by such funding, in the form and at the time specified by the office or its designee.

(e) Other limits on administrative expenses. If the contract, grant, or other agreement is subject to more stringent limits on administrative expenses, whether through law or contract, such limits shall control and shall not be affected by the less stringent limits imposed by these regulations. However, the definition and interpretation of the terms in this Part shall not be affected or limited by the definition or interpretation of terms in other regulations or agreements.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.5 Limits on executive compensation

(a) Limits on executive compensation. Except if a covered provider has obtained a waiver pursuant to section 513.6 of this Part, a covered provider as defined in this regulation shall not use State funds or State-authorized payments for executive compensation given directly or indirectly to a covered executive in an amount greater than $199,000 per annum, provided, however, that the office shall review this figure annually to determine whether adjustment is necessary based on appropriate factors and subject to the approval of the Director of the Division of the Budget. Commencing on July 1, 2013, the limits on executive compensation pursuant to this Part shall be effective and applicable to each covered provider on the first day of each covered provider's respective covered reporting period.

(b) Except if a covered provider has obtained a waiver pursuant to section 513.6 of this Part, where a covered provider's executive compensation given to a covered executive is greater than $199,000 per annum (including not only State funds and State-authorized payments but also any other sources of funding), and either:

(1) greater than the 75th percentile of that compensation provided to comparable executives in other providers of the same size and within the same program service sector and the same or comparable geographic area as established by a compensation survey identified, provided, or recognized by the office and the Director of the Division of the Budget; or

(2) was not reviewed and approved by the covered provider's board of directors or equivalent governing body (if such a board or body exists) including at least two independent directors or voting members (or, where a duly authorized compensation committee including at least two independent directors or voting members conducted such review on behalf of the full board, such actions were not reviewed and ratified by such board), or such review did not include an assessment of appropriate comparability data;

then such covered provider shall be subject to the penalties set forth in section 513.8 of this Part. To determine whether a covered provider may be subject to penalties, such provider shall provide, upon request by the office or its designee, contemporaneous documentation in a form and level of detail sufficient to allow such determination to be made.

(c) Program services rendered by covered executives. The limit on executive compensation pursuant to this section shall not be applied to limit reimbursement with State funds or State-authorized payments for reasonable compensation paid to a covered executive for program services, including but not limited to supervisory services performed to facilitate the covered provider's program services, rendered by the executive outside of his or her managerial or policy-making duties. Documentation of such program services rendered shall be used by the covered provider to determine that percentage, if any, of the covered executive's compensation that is attributable to program services, and that compensation shall not be considered in the calculation of his or her executive compensation. Such documentation shall be maintained and provided to the office or its designee upon request. Clinical and program personnel in a hospital or other entity providing program services, including chairs of departments, heads of service, chief medical officers, directors of nursing, or similar types of personnel fulfilling administrative functions that are nevertheless directly attributable to and comprise program services shall not be considered covered executives for purposes of limiting the use of State funds or State-authorized payments to compensate them.

(d) Covered providers with multiple sources of State funds or State-authorized payments. If a covered provider receives State funds or State-authorized payments from multiple sources, the provider's compliance with the limits on executive compensation in subdivision (a) of this section shall be determined based upon the total amount of such funding received and the reimbursements received from all sources of State funds or State-authorized payments. As set forth in section 513.7 of this Part, the covered provider shall report all of such State funds and State-authorized payments in the form specified by the office or its designee.

(e) Subcontractors and agents of covered providers. The limits on executive compensation in subdivisions (a) and (b) of this section and the reporting requirements in section 513.7 of this Part shall apply to subcontractors and agents of covered providers if and to the extent that such a subcontractor or agent has received State funds or State-authorized payments from the covered provider to provide program or administrative services during the reporting period and would otherwise meet the definition of a covered provider but for the fact that it has received State funds or State-authorized payments from the covered provider rather than directly from a governmental agency. A covered provider shall incorporate into its agreements with such a subcontractor or agent the terms of these regulations by reference to require and facilitate compliance. Upon request, covered providers shall promptly report to the funding or authorizing agency the identity of such subcontractors and agents, along with any other information requested by that agency or by the office or its designee. A covered provider shall not be held responsible for a subcontractor's or agent's failure to comply with these regulations.

(f) Covered providers receiving State funds or State-authorized payments from a county or local government or entity contracting on its behalf. The office or its designee, rather than the county or local unit of government or an entity contracting on behalf of such government, shall be responsible for obtaining the necessary reporting from and compliance by such covered providers, and shall issue guidance to affected county and local governments to set forth the procedures by which the office or its designee shall do so.

(g) Other limits on executive compensation. If the contract, grant, or other agreement is subject to more stringent limits on executive compensation, whether through law or contract, such limits shall control and shall not be affected by the less stringent limits imposed by these regulations. However, the definition and interpretation of terms in this Part shall not be affected or limited by the definition or interpretation of terms in other regulations or agreements.

(h) A covered provider's contract or other agreement with a covered executive agreed to prior to July 1, 2012, shall not be subject to the limits in this section during the term of the contract, except that:

(1) covered providers must apply for a waiver for any contracts or agreements with covered executives for executive compensation that exceeds or otherwise fails to comply with these regulations if such contracts or agreements extend beyond April 1, 2015; and

(2) renewals of such contracts or agreements after the completion of their term must comply with these regulations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.6 Waivers

(a) Waivers for limit on executive compensation. The office or its designee and the Director of the Division of the Budget may grant a waiver to the limits on executive compensation in section 513.5 of this Part for executive compensation for one or more covered executives, or for one or more positions, during the reporting period and, where appropriate, for a longer period upon a showing of good cause. To be considered, an application for such a waiver must comply with this subsection in its entirety.

(1) The application must be filed no later than concurrent with the timely submission of the covered provider's E.O. No. 38 disclosure form required pursuant to section 513.7 of this Part for the reporting period for which the waiver is requested. The application shall be transmitted in the manner and form specified by the office or its designee and the Director of the Division of the Budget. The office shall consider untimely waiver applications where a reasonable cause for such delay is shown.

(2) The following factors, in addition to any other deemed relevant by the office or its designee and the Director of the Division of the Budget, shall be considered in the determination of whether to grant a waiver:

(i) the extent to which the executive compensation that is the subject of the waiver is comparable to that given to comparable executives in other providers of the same size and within the same program service sector and the same or comparable geographic area;

(ii) the extent to which the covered provider would be unable to provide the program services reimbursed with State funds or State-authorized payments at the same levels of quality and availability without obtaining reimbursement for executive compensation given to a covered executive in excess of the limits in section 513.5 of this Part;

(iii) the nature, size, and complexity of the covered provider's operations and the program services provided;

(iv) the provider's review and approval process for the executive compensation that is the subject of the waiver, including whether such process involved a review and approval by the board of directors or other governing body (if such a board or body exists), whether such review was conducted by at least two independent directors or independent members of the governing body, whether such review included an assessment of comparability data including a compensation survey, and contemporaneous substantiation of the deliberation and decision to approve such executive compensation;

(v) the qualifications and experience possessed by or required for the covered executive(s) or position(s), respectively; and

(vi) the provider's efforts, if any, to secure executives with the same levels of experience, expertise, and skills for the positions of covered executives at lower levels of compensation.

(3) A waiver to the limits set forth in section 513.5 of this Part shall be granted only where a covered provider has demonstrated good cause supporting such a waiver, and has provided any documentation requested by the office or its designee or the Director of the Division of the Budget to support such a waiver. Unless additional information has been requested but not received from the covered provider, a decision on a timely submitted waiver application shall be provided no later than 60 calendar days after submission of the application.

(4) If granted, a waiver to a covered provider shall remain in effect for the period of time specified by the office or its designee and the Director of the Division of the Budget for the covered executive position(s) at issue, but shall be deemed revoked when:

(i) the executive compensation that is the subject of the waiver increases by more than five percent in any calendar year; or

(ii) upon notice provided at the discretion of the office or its designee as a result of additional relevant circumstances.

(5) Unless already publicly disclosed, information provided by a covered provider to the office in connection with a waiver application regarding the limits on executive compensation shall not be subject to public disclosure under the State's Freedom of Information Law.

(b) Waivers for limit on reimbursement for administrative expenses. The office or its designee and the Director of the Division of the Budget may grant a waiver to obtain reimbursement for administrative expenses incurred during the reporting period and thereafter in excess of the limit set forth in section 513.4 of this Part upon a showing of good cause. To be considered, an application for such a waiver must comply with this subsection in its entirety.

(1) The application must be filed no later than concurrent with the timely submission of the covered provider's E.O. No. 38 disclosure form for the period for which the waiver is requested, as required pursuant to section 513.7 of this Part. The office shall consider untimely waiver applications where a reasonable cause for such delay is shown.

(2) The following factors, in addition to any others deemed relevant by the office or its designee and the Director of the Division of the Budget, shall be considered in the determination of whether to grant a waiver:

(i) the extent to which the administrative expenses that are the subject of the waiver are necessary or avoidable;

(ii) evidence that a failure to reimburse specific administrative expenses that are the subject of the waiver would negatively affect the availability or quality of program services in the covered provider's geographic area;

(iii) the nature, size, and complexity of the covered provider's operations and the program services provided;

(iv) the provider's efforts to monitor and control administrative expenses and to limit requests for reimbursement for such costs; and

(v) the provider's efforts, if any, to find other sources of funding to support its administrative expenses and the nature and extent of such efforts and funding sources.

(3) A waiver to the limit set forth in section 513.4 of this Part shall be granted only where a covered provider has demonstrated good cause supporting such a waiver, and has provided any documentation requested by the office or its designee or the Director of the Division of the Budget to support such a waiver. Unless additional information has been requested but not received from the covered provider, a decision on a timely submitted waiver application shall be provided no later than 60 calendar days after submission of the application.

(4) If granted, a waiver granted to a covered provider shall remain in effect only for the reporting period, except that the covered provider may request in its waiver application and the office or its designee and the Director of the Division of the Budget may grant an extension of the effective period of such waiver when the waiver is granted.

(5) Unless already publicly disclosed, information provided by a covered provider to the office in connection with a waiver application regarding the limit on administrative expenses shall not be subject to public disclosure under the State's Freedom of Information Law.

(1) If the office or its designee or the Director of the Division of the Budget propose to deny a request for waiver made pursuant to section 513.6 of this Part, the applicant shall be given written notice of the proposed denial, stating the reason or reasons for such proposed denial. Such notice shall be sent by certified mail and shall be a final determination to be effective 30 calendar days from the date of the notice, unless reconsideration is requested.

(2) If the office or its designee or the Director of the Division of the Budget provides a notice of proposed denial, the applicant may request consideration of the proposed denial by submitting a written request for reconsideration within 30 calendar days of the date of the notice of proposed denial. Submission of a request for reconsideration within 30 calendar days shall stay any action to deny an applicant's request for a waiver, pending a decision regarding such request for reconsideration, and shall stay any action to enter into a contract or other agreement. Any vouchers submitted by the applicant for payment by the office during which such reconsideration is pending may be considered incomplete at the office's discretion.

(3) The written request for reconsideration shall be signed by the owner(s) or chief executive officer of the applicant, and shall include all information the applicant wishes to be considered, including any written documentation that would controvert the reason(s) for the denial or disclose that the denial was based upon a mistake of fact.

(4) If the applicant properly seeks reconsideration of the proposed denial, the office or its designee or the Director of the Division of the Budget shall review the proposed denial and shall issue a written determination after reconsideration. The determination after reconsideration may affirm, revoke, or modify the proposed denial. Such determination shall be a final decision.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.7 Reporting

(a) Reporting by covered providers. Beginning after the effective date of this regulation, covered providers shall submit a completed E.O. No. 38 disclosure form for each covered reporting period. Such form shall be submitted no later than 180 calendar days following the reporting period, unless otherwise authorized. Such form shall be submitted in the manner and form specified by the office or its designee. Covered providers shall further provide the information requested in that form, and any other information requested, upon the request of the office or its designee at any time during the term of or prior to the execution of any contract or agreement with such provider.

(b) Covered providers receiving State funds or State-authorized payments from county or local government or an entity contracting on its behalf must report directly to the office as required by this section. The county or local government or the entity contracting on its behalf shall advise such covered providers of their obligation to report directly to the office under this section, but shall not be responsible for receiving or forwarding such reports to the office.

(c) Failure to report. A covered provider's failure to submit a completed E.O. No. 38 disclosure form, or to provide additional or clarifying information at the request of the office or its designee, may result in the termination or non-renewal of a contract or agreement for State funds or State-authorized payments.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 513.8 Penalties

(a) Notice of preliminary determination of non-compliance. Whenever it is determined that a covered provider may not be in compliance with the requirements of section 513.4 or 513.5 of this Part and has not obtained a waiver, the provider shall be notified in writing of the basis for that determination. Such notice shall provide the covered provider with an opportunity and a procedure to submit additional or clarifying information within 30 calendar days of the provider's receipt of such notice to demonstrate compliance with this Part. Failure to submit additional or clarifying information within the required time period shall result in the determination of non-compliance becoming final.

(b) Corrective action period. If the determination of non-compliance becomes final as set forth in subdivision (a) of this section or if the office or its designee determines, after reviewing and considering any information submitted by the covered provider, that such provider is not in compliance with the requirements of section 513.4 or 513.5 of this Part, the provider shall receive notice of such determination and a notice to cure. Such notice shall allow the covered provider a period of not less than six months to correct the violation(s) identified (the corrective action period) prior to additional enforcement action or penalties being imposed, and shall require that the covered provider submit within 30 calendar days a corrective action plan (CAP) for approval by the office or its designee.

(c) Corrective action plan. Within 30 calendar days of receipt of the covered provider's CAP, the office or its designee shall either approve such CAP or request clarification or alterations. The covered provider shall make such alterations to the CAP as may be reasonably required by the office or its designee. Once the CAP has been approved and the covered provider notified, and unless otherwise provided in the approved CAP, the covered provider shall have six months to complete the CAP and comply with this Part.

(d) Failure to cure. At the conclusion of the period for implementation of an approved CAP, the office or its designee may request information from the covered provider to determine whether the CAP has been fully and properly implemented. If it has been so implemented, the matter shall be considered closed and no further action on the part of the office or the provider shall be required. If the office or its designee determines that the CAP has not been fully and properly implemented within the designated corrective action period, the office or its designee shall provide written notice to the provider and may take one or more of the following actions, taking into account the seriousness of the violations, the nature of the provider's services, and the provider's efforts to correct the violations, if any:

(1) At its sole discretion, modify the CAP and/or extend the time for the provider to complete implementation.

(2) Issue a final determination of non-compliance, together with a notice of the sanctions which the office seeks to impose. Such sanctions may include:

(i) redirection of State funds or State-authorized payments to be used to provide program services, where possible and consistent with Federal and State laws;

(ii) suspension, modification, limitation, or revocation of the provider's license(s) to operate program(s) for the delivery of program services;

(iii) suspension, modification or termination of contracts or other agreements with the covered provider; and

(iv) any other lawful actions or penalties deemed appropriate by the office or its designee.

(e) Opportunity for appeal. Within 30 calendar days of receipt of a final determination of noncompliance and notice of proposed sanctions, a covered provider may request an administrative appeal by submitting a written request to the name and address set forth in the notice. The request must include a detailed explanation of the legal and factual bases for the provider's challenge to the determination and all documentation in support of the provider's position. If a request for an administrative appeal is not made within the required 30 calendar days, the determination of noncompliance shall become final and the proposed sanction shall be imposed. Unless the office or its designee seeks to impose a sanction for which an administrative hearing is otherwise required by statute or regulation, the covered provider's appeal shall be limited to an administrative review of the record. Following the review, the covered provider shall be provided with a final written determination setting forth the findings of fact and conclusions of law that support the determination. If the provider is found to be non-compliant, the proposed sanction may be imposed forthwith.

Part 514 Clinical Review Criteria for the Treatment of Mental Illness

N.Y. Comp. Codes R. & Regs. Tit. 14 § 514.1 Background and intent

This Part establishes the process and standards governing the Office's approval of Clinical Review Criteria used by Utilization Review Agents that register with the New York State Department of Health pursuant to Article 49 of the Public Health Law or report to the New York State Department of Financial Services pursuant to Article 49 of the Insurance Law to determine health care coverage for any treatment or service for a Mental Illness.

History

Adopted New York State Register May 15, 2024/Volume XLVI, Issue 20, eff. 5/15/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 514.2 Legal base

(a) Section 7.07 of the Mental Hygiene Law grants the Office of Mental Health the power and responsibility to see that people with mental illness are provided with care and treatment and that the personal and civil rights of people who receive care and treatment are protected.

(b) Section 7.09 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under their jurisdiction.

(c) Section 4902 of the Public Health Law requires Utilization Review Agents for health insurance policies under the jurisdiction of the Department of Health to use evidence-based and peer reviewed Clinical Review Criteria that is appropriate to the age of the patient and which has been deemed appropriate and approved for such use by the Commissioner of the Office of Mental Health, in consultation with the Commissioner of Health and the Superintendent of Financial Services for any treatment or service for a Mental Health Condition.

(d) Section 4902 of the Insurance Law requires Utilization Review Agents for health insurance policies under the jurisdiction of the Department of Financial Services to use evidence-based and peer reviewed Clinical Review Criteria that is appropriate to the age of the patient and which has been deemed appropriate and approved for such use by the Commissioner of the Office of Mental Health, in consultation with the Commissioner of Health and the Superintendent of Financial Services for any treatment or service for a Mental Health Condition.

(e) Sections 3216 (i)(35)(f), 3221 (i)(5)(f), and 4303 (g)(7) of the Insurance Law require insurers and corporations that issue health insurance policies or contracts approved by the Department of Financial Services to provide coverage of inpatient and outpatient care for the treatment of Mental Illness, as specified in the Insurance Law, consistent with the Federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (29 U.S.C. § 1185a).

History

Adopted New York State Register May 15, 2024/Volume XLVI, Issue 20, eff. 5/15/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 514.3 Applicability

The provisions of this Part shall apply to Utilization Review Agents conducting Utilization Review for purposes of determining health care coverage for any treatment or service for a Mental Health Condition in accordance with Article 49 of the Insurance Law or Article 49 of the Public Health Law.

History

Adopted New York State Register May 15, 2024/Volume XLVI, Issue 20, eff. 5/15/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 514.4 Definitions

For purposes of this Part:

(a) Clinical Review Criteria means the written screening policies, procedures, clinical protocols, practice guidelines, level of care tools, and programs used by a Utilization Review Agent to determine the medical necessity and appropriateness of a proposed health care service for the treatment of a Mental Health Condition.

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

(c) Mental Health Condition shall have the same meaning as such term is provided in sections 3216, 3221, and 4303 of the Insurance Law.

(d) Utilization Review shall have the same meaning as such term is provided in section 4900 of the Public Health Law or section 4900 of the Insurance Law, as applicable.

(e) Utilization Review Agent shall have the same meaning as such term is provided in section 4900 of the Public Health Law or section 4900 of the Insurance Law, as applicable.

History

Adopted New York State Register May 15, 2024/Volume XLVI, Issue 20, eff. 5/15/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 514.5 Standards for the approval of Clinical Review Criteria for use by Utilization Review Agents

(a) A Utilization Review Agent shall submit its Clinical Review Criteria to the Office for review and approval.

(b) The Office shall approve Clinical Review Criteria that are evidencebased, peer-reviewed, age-appropriate, and meet standards published by the Office, including the Guiding Principles for the Review and Approval of Clinical Review Criteria for Mental Health Services, incorporated by reference in section 514.6 of this Part.

(c) The Office shall not approve Clinical Review Criteria that does not comply with Federal or State mental health and substance use disorder parity laws, which shall be determined in consultation with the Commissioner of Health and the Superintendent of Financial Services.

(d) If a Utilization Review Agent intends to implement new or revised Clinical Review Criteria, the Utilization Review Agent shall submit such criteria to the Office no later than 60 days prior to the date of implementation and shall not implement such criteria without the prior written approval of the Office.

History

Adopted New York State Register May 15, 2024/Volume XLVI, Issue 20, eff. 5/15/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 514.6 Incorporation by Reference

The provisions of the Guiding Principles for the Review and Approval of Clinical Review Criteria for Mental Health Services, which have been incorporated by reference in this Part, have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the document entitled: Guiding Principles for the Review and Approval of Clinical Review Criteria for Mental Health Services (Issued November 25, 2019; Revised June 15, 2022). This document incorporated by reference may be examined at the Office of the Department of State, 99 Washington Ave., Albany, NY 12231 or obtained from the Office of Mental Health, Records Access Officer, 44 Holland Ave., Albany, NY 12229 or available on the Office of Mental Health website.

History

Adopted New York State Register May 15, 2024/Volume XLVI, Issue 20, eff. 5/15/2024

Part 517 Transfer Or Referral Of Patients For Admission To Psychiatric Hospitals

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.1 Applicability

(a) With the exception of section 517.10, this Part applies to transfer or other change of accommodation of a patient from a psychiatric hospital to a psychiatric hospital other than Mid-Hudson Psychiatric Center (transfer to which is governed by Part 57 of this Title). This Part replaces Part 17 of this Title as it relates to such transfers and changes of accommodation.

(b) Section 517.10 of this Part applies to facilities, agencies or programs, other than psychiatric hospitals, which refer patients for admission to a State-operated psychiatric center. Such facilities, agencies or programs may or may not be certified by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.2 Legal base

(b) Section 29.11 of the Mental Hygiene Law authorizes the Commissioner of Mental Health to order or approve the transfer of a patient from one facility, as defined in section 1.03 of the Mental Hygiene Law, to another appropriate facility. This same section authorizes the commissioner to arrange for the interim or emergency accommodation of patients.

(c) Section 29.01 of the Mental Hygiene Law grants the Commissioner of Mental Health the authority to adopt regulations governing admissions to hospitals and to prescribe and furnish forms for use in procedures for admission.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.3 Terms and definitions

(a) Clinical director means the person in charge of clinical services at the hospital where the patient is receiving care and treatment.

(b) Commissioner means the Commissioner of Mental Health.

(c) Director means the person in charge of a hospital, whether known or referred to as director, superintendent or otherwise.

(d) Guardian means a guardian, trustee, legal committee, conservator or other person who is charged by law with power to act for or responsibility for a person afflicted with mental illness.

(e) Hospital or psychiatric hospital means a hospital as defined in section 1.03 of the Mental Hygiene Law.

(f) Informal patient, voluntary patient, involuntary patient and emergency patient mean a patient on informal, voluntary, involuntary or emergency admission status, respectively, pursuant to article 9 of the Mental Hygiene Law.

(g) Is likely to result in immediate serious physical harm to self or others means:

(1) poses a substantial risk of immediate physical harm to self as manifested by present threats of or attempts at suicide or serious bodily harm demonstrating that the patient is dangerous to self; or

(2) poses a substantial risk of immediate physical harm to other persons as manifested by present homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.

(h) Major renovation means rebuilding or repairing which will result in closure for six months or longer of a significant portion of one or more buildings of a psychiatric hospital and a concurrent significant reduction in bed capacity, for the purpose of:

(1) complying with the requirements of the Life Safety Code of the National Fire Protection Association;

(2) meeting or maintaining standards of eligibility for participation as a provider of inpatient psychiatric services under the Medicare or the Medicaid assistance programs, including meeting or maintaining standards of accreditation by the Joint Commission on Accreditation of Hospitals; or

(3) making significant improvement in patient care and treatment.

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

(j) MHLS means the Mental Hygiene Legal Service.

(k) OMH means the Office of Mental Health.

(l) Patient means a person, other than someone committed pursuant to the Criminal Procedure Law or Correction Law, who is receiving services for the mentally ill at a psychiatric hospital.

(m) Receiving hospital means the hospital to which a patient is to be or has been transferred.

(n) Referring entity means a facility, agency or program which is referring a patient for admission to a State-operated psychiatric center. The referring entity may or may not be certified by the Office of Mental Health, but may not be operated by the Office of Mental Health.

(o) [Reserved]

(p) Sending hospital means the hospital from which a patient is to be or has been transferred.

(q) Significant other means a relative, close friend, associate or individual otherwise concerned with the welfare of a person afflicted with mental illness when that individual is directly affected by the person's mental illness.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.5 Transfer of emergency patient

(a) A patient on emergency admission status may be admitted to another hospital pursuant to the provisions of article 9 of the Mental Hygiene Law governing involuntary admission on application supported by medical certification, without the necessity of obtaining an order of transfer.

(b) When transfer of a patient is effected pursuant to subdivision (a) of this section:

(1) the sending hospital shall give to the Mental Hygiene Legal Service prior written notice of such transfer; and

(2) the receiving hospital shall give notice in accordance with section 517.4(i) of this Part.

(c) When, pursuant to subdivision (a) of this section, a patient who is under 21 years of age and is a recipient of medical assistance is transferred to a State-operated psychiatric center, a certification of need form shall be completed by the sending hospital and submitted to the receiving hospital upon transfer. The certification of need form shall be completed as described in section 517.4(b)(3) of this Part. If it is determined that the transfer of a patient is necessary in order to prevent serious impairment or deterioration of the health of the patient, or to prevent immediate serious physical harm to the patient or others, the sending hospital is not required to complete a certification of need form. In such cases, the receiving hospital shall complete the certification of need form within 14 days after the patient's admission to the receiving hospital.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.6 Temporary transfer without order

(a) The commissioner may approve a transfer without order between hospitals for a period of 30 days for a patient in need of special medical or surgical care available at the receiving, but not the sending, hospital. Such transfer shall not be extended beyond 30 days unless an order of transfer is obtained pursuant to the provisions of section 517.4 of this Part.

(b) Unless otherwise prohibited by court order in specific cases, the commissioner may approve a transfer without order from a hospital operated by the OMH to those institutes designated under section 7.17 (b) of the Mental Hygiene Law as institutes for the conduct of medical research on mental illness, for a period not to exceed 60 days. Written consent to such transfer shall be obtained in accordance with Part 27 of this Title. Such transfer shall not be extended beyond 60 days unless an order of transfer is obtained pursuant to the provisions of section 517.4 of this Part. The patient shall be returned to the sending hospital upon the expiration of the authorized transfer, but the patient shall be returned prior to such expiration upon the request of the patient or of the person who has given consent on behalf of the patient or upon the determination of the director of the institute that the patient's presence at the institute is no longer needed.

(c) The commissioner may approve a temporary transfer without order for a patient who is required to appear at a court hearing, from a hospital located outside the county of the court where such hearing is scheduled to be heard to a hospital located within the county of the court, if such transfer would significantly reduce inconvenience to the patient. Such transfer shall be extended beyond 30 days only upon written approval of the commissioner based upon a written request stating the reasons for such extension.

(d) The commissioner or a designee thereof may approve a transfer without order from a residential treatment facility for children and youth to a hospital, for a period of up to 30 days, if the patient has a mental illness which is likely to result in immediate serious physical harm to self or others, as defined in section 517.3(g) of this Part, unless a specified program of services is provided to such patient, and if such program is available at the receiving hospital but not at the residential treatment facility. Such transfer shall not be extended beyond 30 days unless an order of transfer is obtained pursuant to the provisions of section 517.4 of this Part.

(e) When a patient's temporary transfer without order is effected pursuant to this section, the sending hospital shall, no later than three days after such transfer, give written notice thereof to the following parties:

(1) the nearest relative of the patient;

(2) additional significant others who the patient has indicated should receive notice of the patient's hospitalization and status;

(3) the patient's guardian, if any, if such guardian is not included under paragraph (1) or (2) of this subdivision; and

(4) the Mental Hygiene Legal Service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.7 Interim accommodation of patients

(a) The commissioner may authorize the director of a hospital (referred to in this section as the "evacuating hospital") to arrange with one or more directors of OMH hospitals, designated by the commissioner or a designee thereof, for the interim accommodation of patients, upon a determination by the commissioner or designee that a potential hazard to patients and staff will occur at the evacuating hospital as a result of overcrowding caused by:

(1) major renovation of existing space;

(2) planned demolition of existing space; or

(3) revocation or suspension of an OMH operating certificate pursuant to Part 73 of this Title, requiring the removal of patients.

(b) The evacuating hospital's director or designee may select any involuntary, emergency or consenting voluntary or informal patient for interim accommodation. A voluntary patient who is offered but who refuses to accept interim accommodation may be:

(1) retained at the evacuating hospital;

(2) discharged, if appropriate, in accordance with a service plan prepared for the patient pursuant to section 29.15 of the Mental Hygiene Law; or

(3) converted to involuntary status and thereafter given interim accommodation, if the patient meets the criteria for involuntary retention.

(1) The evacuating hospital shall, no later than three days following commencement of such accommodation, give written notice thereof to the following parties:

(i) the nearest relative of the patient;

(ii) additional significant others who the patient has indicated should receive notice of the patient's hospitalization and status;

(iii) the patient's guardian, if any, if such guardian is not included under subparagraph (i) or (ii) of this paragraph; and

(iv) the Mental Hygiene Legal Service.

(2) The evacuating hospital shall, no later than three days following the patient's return, give written notice thereof to the parties described in paragraph (1) of this subdivision.

(d) Upon alleviation of the condition which caused interim accommodation of a patient, such patient shall be offered the opportunity to return to the evacuating hospital. Any patient who elects to remain at the hospital which provided interim accommodation may be permitted to do so if such hospital agrees to formal admission of the patient and if, based on the criteria established in section 517.4(d)(1) of this Part, the patient's best interests would be better served by admission to such hospital than by return to the evacuating hospital. In such case, the directors of the evacuating hospital and of the hospital which provided interim accommodation shall cooperate in effecting the patient's formal admission to the latter hospital.

(e) Where inconsistent with foregoing provisions of this Part, this section shall control.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.8 Emergency accommodation of patients

(1) overcrowding presently exists at the evacuating hospital because of a scarcity of space; or

(2) an unforeseen occurrence or act has created a hazard which immediately renders a significant portion of one or more buildings of the evacuating hospital unfit for its normal use and will result in overcrowding of remaining space.

(b) Emergency accommodation shall be provided to all patients in need of such accommodation, regardless of their admission status.

(c) When a patient is provided with emergency accommodation pursuant to this section, the evacuating hospital shall give notice in accordance with section 517.7(c) of this Part.

(d) Upon alleviation of the condition which caused emergency accommodation of a patient, such patient shall be offered the opportunity to return to the evacuating hospital. Any patient who elects to remain at the hospital which provided emergency accommodation may be permitted to do so if such hospital agrees to formal admission of the patient and if, based on the criteria established in section 517.4(d)(1) of this Part, the patient's best interests would be better served by admission to such hospital than by return to the evacuating hospital. In such case, the directors of the evacuating hospital and of the hospital which provided emergency accommodation shall cooperate in effecting the patient's formal admission to the latter hospital.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.9 Transportation of patient

(a) Unless otherwise agreed to by both hospitals, transportation of the patient between the sending and receiving hospitals shall be provided by the sending hospital or by the patient's significant others. Before permitting significant others to transport the patient, the sending hospital shall consult with the patient and shall determine that there are no contraindications to granting such permission.

(b) A female patient transported pursuant to subdivision (a) of this section must be accompanied by another female or the patient's father, brother, husband or son.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 517.10 Referral of patient for admission to a state-operated psychiatric center

(a) Referral process. No person under 21 years of age who is a recipient of medical assistance shall be referred for admission to a State-operated psychiatric center unless the referring entity shall first have certified, pursuant to this section, the patient's need for inpatient treatment. Such certification shall be made on forms approved by the Office of Mental Health.

(b) Content of certification. The certification of need, completed by the referring entity, shall include a written attestation of the following:

(1) ambulatory care resources available in the community do not meet the treatment needs of the patient;

(2) proper treatment of the patient's psychiatric condition requires services on an inpatient basis under the direction of a physician; and

(3) inpatient treatment can reasonably be expected to improve the patient's condition or prevent further regression so that the services will no longer be needed.

(c) Who may complete the certification of need form. The certification of need form shall be completed by a team of two or more individuals who are independent of the Office of Mental Health. Such team, which has knowledge of the individual's situation, and has competence in the diagnosis and treatment of mental illness, preferably in child psychiatry, shall include a physician.

(d) Exceptions to the process for referral.

(1) An expedited referral of a patient to a State-operated psychiatric center may be completed when services are necessary to prevent serious impairment or deterioration of the health of a patient, or to prevent immediate serious physical harm to the patient or others. Such expedited referrals do not require the completion of a certification of need form by the referring entity. In such cases, the State-operated psychiatric center shall complete the certification of need form within 14 days after the patient's admission.

(2) Referring entities which do not have access to a team as described in subdivision (c) of this section may request that the commissioner or his designee grant an exemption from the provisions of this section.

(e) Admission criteria. Nothing in this section shall alter a State-operated psychiatric center's authority regarding the admission of patients to such facilities. No patient referred by a referring entity shall be admitted to a State-operated psychiatric center unless the patient meets the admission criteria of the State-operated psychiatric center.

Part 520 Access To Or Amendment/correction Of Records

N.Y. Comp. Codes R. & Regs. Tit. 14 § 520.1 Background and intent

(a) It is the responsibility and the intent of the Office of Mental Health (OMH) to fully comply with the provisions of article 6-A of the Public Officers Law, the Personal Privacy Protection Law.

(b) OMH shall maintain in its records only such personal information that is relevant and necessary to accomplish the purpose of the agency.

(c) Personal information will be collected, whenever practicable, directly from the person to whom the information pertains, except when collected about a person receiving services at a facility or when collected for the following purposes:

(1) making quasi-judicial determination;

(2) determining whether to issue, deny, revoke, suspend, limit, amend or renew an operating certificate; or

(3) determining whether to take administrative or criminal action to restrain or prosecute violations of law.

(d) OMH shall seek to ensure that all records pertaining to or used with respect to individuals are accurate, relevant, timely and complete.

(e) This Part provides information regarding the procedures by which members of the public may exercise rights granted by the Personal Privacy Protection Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 520.2 Legal base

(b) Article 6-A of the Public Officers Law sets forth agency obligations for maintaining, disclosing, granting access to and retention of records containing personal information about individuals, and requires the Office of Mental Health to establish rules and regulations necessary to comply with the article.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 520.3 Applicability

(a) This Part applies to requests for access to, or amendment or correction of records maintained by the Office of Mental Health.

(b) Nothing in this Part shall require OMH to grant access to or amend or correct any record not otherwise required by the Personal Privacy Protection Law, such as a clinical record or attorney's work product or material prepared for litigation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 520.4 Definitions

(a) Data subject shall mean any natural person about whom personal information has been collected by an agency.

(b) Privacy impact statement shall mean a written disclosure to the Committee on Open Government describing a system of records maintained by an agency from which personal information is retrievable by use of a name or other identifier of a data subject.

(c) Record shall mean any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject. The term record shall not include personal information which is not used to make any determination about the data subject if it is:

(1) a telephone book or directory which is used exclusively for telephone and directory information;

(2) any card catalog, book or other resources material in any library;

(3) any compilation of information containing names and addresses only which is used exclusively for the purpose of mailing agency information;

(4) personal information required by law to be maintained and required by law to be used, only for statistical research or reporting purposes;

(5) information required by the agency which is necessary for the agency to answer unsolicited requests by the data subject for information; or

(6) correspondence files.

(d) System of records shall mean any group of records under the actual or constructive control of any agency pertaining to one or more data subjects from which personal information is retrievable by use of the name or other identifier of a data subject.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 520.6 Appeal

(a) Any person denied access to a record or denied a request to amend or correct a record pursuant to section 520.5 of this Part may, within 30 days of such denial, appeal the denial.

(b) A failure to grant or deny access to records within five business days of the receipt of a request or within 30 days of an acknowledgment of the receipt of a request, or a failure to respond to a request for amendment or correction of a record within 30 days of receipt of such a request shall be construed as a denial that may be appealed.

Counsel

Office of Mental Health

44 Holland Avenue

Albany, NY 12229

(d) The time for deciding an appeal shall commence upon receipt of an appeal that identifies:

(1) the date and location of a request for a record, amendment or correction of a record;

(2) the record that is the subject of the appeal; and

(3) the name and return address of the appellant.

(e) Within seven business days of receipt of an appeal of a denial of access, or within 30 days of receipt of an appeal concerning a denial of a request for correction or amendment, the person determining such appeal shall:

(1) provide access to or correct or amend the record; or

(2) fully explain in writing the factual and statutory reasons for further denial and inform the data subject of the right to seek judicial review of such determination pursuant to article 78 of the Civil Practice Law and Rules.

(f) If, upon appeal, a record is corrected or amended, the data subject shall be informed that, on request, the correction or amendment will be provided to any person or governmental unit to which the record has been or is disclosed pursuant to paragraph (d), (i) or (l) subdivision (1) of section 96 of the Public Officers Law.

(g) If, upon appeal, correction or amendment of a record is denied in whole or in part, the determination rendered pursuant to the appeal shall inform the data subject of the right to:

(1) file with the agency a statement of reasonable length setting forth the data subject's reasons for disagreement with the determination; or

(2) request that such a statement of disagreement be provided to any person or governmental unit to which the record has been or will be disclosed pursuant to paragraph (d), (i) or (l) of subdivision (1) of section 96 of the Public Officers Law.

(h) The Office of Mental Health shall immediately forward to the Committee on Open Government, a copy of any appeal made pursuant to this Part, including the determination thereof and the reasons for such determination.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 520.7 Statement of disagreement

(a) When a data subject who has, upon appeal, been denied amendment or correction of a record files a statement of disagreement with the Office of Mental Health, the Office of Mental Health shall:

(1) clearly note any portions of the record that are disputed; and

(2) attach the data subject's statement as part of the record.

(b) When providing a data subject's statement of disagreement to a person or governmental unit in conjunction with a disclosure made pursuant to paragraph (d), (i) or (l) of subdivision (1) of section 96 of the Public Officers Law, the Office of Mental Health may also include a concise statement of its reasons for not making the requested amendment or correction.

Part 521 Financial Assistance For Capital Acquisition And Construction

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.1 Background and intent

(a) It is the policy of the State of New York to seek the establishment of a system of community mental health services for the mentally ill. Towards this end, the commissioner and the Office of Mental Health wish to encourage voluntary agencies and local governments to acquire the facilities to provide these services. In accordance with this policy and these desires, the Legislature has authorized the commissioner to reimburse up to 50 percent of eligible capital costs incurred in the development of such facilities.

(b) The purpose of this Part is to set forth the requirements, conditions and regulations regarding the granting of a State aid grant from the Office of Mental Health, pursuant to article 41 of the Mental Hygiene Law, and/or a Housing Finance Agency mortgage loan, pursuant to article 75 of the Mental Hygiene Law, for the funding of up to 50 percent of the eligible capital costs associated with the development of community mental health facilities or a Facilities Development Corporation mortgage loan pursuant to section five of the Facilities Development Corporation Act, for up to 100 percent of the eligible capital costs associated with the development of such community mental health facilities.

(c) A further purpose is to set forth the conditions and requirements for such development and facility operation, as well as to provide for the security of the interest of the OMH in the facilities so funded.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.2 Legal base

(a) Section 7.07 of the Mental Hygiene Law sets forth the authority of OMH for assuring the development of plans, services and programs for the mentally ill. The office has the responsibility to provide appropriate facilities and encourage the provision of facilities by local governments and community organizations and agencies.

(b) Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health the power and responsibility to adopt rules and regulations necessary and proper to implement any matter under his jurisdiction.

(c) Sections 41.15, 41.18 and 41.23 of the Mental Hygiene Law set forth the authority of the Office of Mental Health to provide State aid funding for the capital costs for community mental health facilities, pursuant to a local services or unified services plan.

(d) Sections 75.17 and 75.19 of the Mental Hygiene Law set forth the authority of the commissioner to approve mortgage loans for funds available from the Housing Finance Agency.

(e) Section 75.25 of the Mental Hygiene Law sets forth the authority of the commissioner to make, alter, amend and repeal rules and regulations for the supervision, examination, regulation and audit of companies.

(f) Subdivision 13-c of section 5 of the Facilities Development Corporation Act sets forth the authority of the commissioner to promulgate regulations with respect to financing or refinancing of community facilities by voluntary agencies with the proceeds of funds realized from the sale of tax-exempt bonds and notes issued by Medical Care Facilities Finance Agency.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.3 Applicability

(a) This Part shall apply to any applicant, as defined herein eligible for, or seeking to obtain, a State aid grant, a mortgage loan from the Facilities Development Corporation and/or a mortgage loan from the Housing Finance Agency for the purpose of funding the eligible capital costs associated with the acquisition, construction, reconstruction or rehabilitation of a community mental health facility, pursuant to articles 41 and/or 75 of the Mental Hygiene Law.

(b) This Part supersedes Part 101 of this Title as it relates to community facilities where services for the mentally ill are provided in accordance with the Office of Mental Health's standards.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.4 Definitions

(a) Applicant. A local government, voluntary agency, or company which has applied for a State aid grant, a Facilities Development Corporation mortgage loan or a Housing Finance Agency mortgage loan pursuant to article 41 and/or article 75 of the Mental Hygiene Law.

(b) Commissioner. The Commissioner of the Office of Mental Health.

(c) Community mental health facility. A program located at a specified site in the community where services for the mentally ill are provided in accordance with the OMH standards.

(d) Company. A community mental health services company duly incorporated pursuant to the provisions of the Not-for-Profit Corporation Law and article 75 of the Mental Hygiene Law for the purpose of providing care, treatment, training, education and/or residential services for the mentally ill and, such facilities as may be incidental thereto.

(e) Eligible capital costs for a State aid grant. The actual costs incurred by an applicant for a State aid grant with respect to site development, architectural/engineering services, site/building acquisition, construction/rehabilitation, original furnishings and equipment, and other costs of a local facility as defined in article 41 of the Mental Hygiene Law or as allowed by the Office of Mental Health. Such costs associated with Housing Finance Agency mortgage loans are referred to as "project costs" pursuant to article 75 of the Mental Hygiene Law.

(f) Eligible capital cost for a housing finance agency mortgage loan. Capital costs (referred to as "project costs" in section 75.05 of the Mental Hygiene Law) eligible for an Housing Finance Agency mortgage loan may only include costs incurred by the applicant pursuant to article 75 of the Mental Hygiene Law.

(g) Local government. A county, except a county within the City of New York, and the City of New York.

(h) Local governmental unit. The unit of local government given authority in accordance with article 41 of the Mental Hygiene Law by local government to provide local or unified services for the mentally ill.

(i) Voluntary agency. A corporation organized or existing pursuant to the Not-for-Profit Corporation Law and/or article 75 of the Mental Hygiene Law to provide local or unified services for the mentally ill.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.5 Program and fiscal requirements

(a) Local governments, voluntary agencies, companies and sponsors or proposed incorporators may apply for State aid grant, and/or HFA mortgage loan.

(b) A completed application must be submitted to the OMH in the format and on forms prescribed by the commissioner.

(c) A certificate of need application must be submitted pursuant to OMH regulations and conditionally approved prior to the payment of State aid grant funds.

(d) The applicant must agree to be bound by, and execute the documents necessary to insure compliance with the assurances contained in section 521.10 of this Part.

(e) The applicant will comply with the following fiscal and bookkeeping requirements:

(1) The applicant for a State aid grant is required to establish and maintain accounting and fiscal records in a manner approved by the OMH to reflect the receipt and expenditure of funds allotted and paid for capital costs. Similar suitable accounts shall be maintained to show receipt and disbursement of Federal, local or other funds used for matching purposes.

(2) The applicant will demonstrate to the OMH, by submission of adequate documentation that sufficient funds will be available to the applicant to enable the applicant to meet the nonstate aid grant share, as provided for under these regulations, of the capital cost of the project.

(3) The applicant will demonstrate to OMH that sufficient funds will be available when the capital portion of the project is completed for effective use of the facility for the purposes for which the State aid grant has been provided.

(4) The OMH shall have access to the books, records and physical site of any facility receiving a State aid grant.

(f) The applicant for a Housing Finance Agency mortgage loan must, in addition to the requirements imposed by the OMH, comply with any and all additional requirements imposed by the Housing Finance Agency.

(g) The applicant must enter into and execute such agreements that, as determined by the OMH, are necessary to secure the appropriate use of the State aid grant or Housing Finance Agency mortgage proceeds, as provided for in section 521.13 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.6 Title requirements for property

(a) At the time of receiving a State aid grant, the applicant must be able to demonstrate to the Office of Mental Health that the applicant will possess property rights over the facility that are of sufficient quality and are for the requisite duration.

(1) For the purposes of this subdivision, the following definitions shall apply:

(i) Possession of property rights means that these rights are presently held by the applicant or that the applicant is under contract to acquire them.

(ii) Property rights means the ability to possess and use the premises and includes a fee simple, a fee on limitation, a rental agreement, a contract, a contract coupled with possession or a cooperative interest.

(iii) Sufficient quality means that the applicant will be able to utilize the property for the intended purpose without the risk of losing rights to the property. It is such an interest, when viewed in conjunction with recorded documents or secured contractual agreements, which provides for undisturbed use and possession for the purposes of the facility.

(iv) Requisite duration means that the applicant can use the premises for the period of time required for program operation at the facility. This period of time is specified in section 521.10(a)(6) of this Part.

(2) The commissioner may, upon written application and in his sole discretion, pay a limited portion of the State aid grant prior to the time the applicant is able to demonstrate the presence of the title characteristics required by this subdivision. The applicant's prospective ability to demonstrate the required title characteristics must be established in such a manner as is required by the commissioner in each case. Payment may be made in whatever form the commissioner determines to be necessary to protect the interest of the OMH.

(b) Based upon the type of interest, the possession of property rights must be demonstrated to the Office of Mental Health as detailed below:

(1) A fee interest in real property, requires the submission to the Office of Mental Health of a copy of a title insurance policy and a counsel's opinion letter.

(i) The title insurance may be a final policy or a marked title report. It must certify the applicant's interest in the property.

(ii) A survey and a survey reading must be included in the policy. If the survey was last updated more than 90 days before the acquisition of the property, a current survey inspection is required, unless the property is located in a condominium.

(iii) Counsel's opinion letter must certify that the applicable recorded documents, declaration of condominium, bylaws and protective covenants, as well as zoning ordinances and local regulations have been examined and that the interest held is of sufficient quality and for the requisite duration.

(2) A lease or a contract to acquire an interest in real property requires submission of documents and the applicant's counsel's opinion letter.

(i) The documents required include copies of the recorded lease agreement and/or memorandum of lease or contract to purchase.

(ii) Counsel's legal opinion letter must certify that the interest, in conjunction with any documents of record, including recorded mortgage instruments, is of sufficient quality and for the requisite duration.

(3) Cooperative interests and contracts to acquire them, such as a subscription agreement or a contract to purchase, require that the applicant investigate the rules governing the interest and submit the applicant's counsel's legal opinion letter.

(i) The applicant should assure that the proprietary lease runs for a period greater than the period of time required for the operation of the facility; the proprietary lease permits subletting and/or transient subletting; default provisions based on occupant behavior; allow for removal of the occupant/subtenant rather than loss of the applicant's interest; and, these rights are stated in the certificate of incorporation of the cooperative corporation and its bylaws and are protected by appropriate supra-majority amendment provisions. These matters may be determined through investigation of the prospectus as currently amended, and confirmed in the documents listed above.

(ii) Counsel's legal opinion letter must certify that the interest is of sufficient quality and for the requisite duration. It must contain specific citation of the portions of the relevant documentation upon which the legal opinion was based, in addition to copies of such supporting documentation (e.g., the certificate of incorporation, the bylaws, the proprietary lease and/or the prospectus).

(4) The applicant for a Housing Finance Agency mortgage loan must have or will have, at the time the Housing Finance Agency mortgage is executed and delivered, a fee simple including necessary easements and rights-of-way free and clear of all covenants, mortgages, easements and encumbrances, sufficient to assure undisturbed use and possession for the purposes of the facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.7 Method of payment of state aid grants

(a) Payments shall be made pursuant to an installment schedule determined by the OMH. Upon completion of the project, an audit shall be conducted by the OMH. A final payment will be made upon completion of the audit and its acceptance by the OMH and the State Comptroller.

(b) Certification that payment of any of the scheduled installments due to an applicant may be subject to inspection by OMH to determine that the work has been performed upon a project or that purchases have been made in accordance with the approved plans and specifications.

(c) OMH, in its sole discretion, may require the State aid grant funds be disbursed to third parties, held in escrow, or paid to the applicant in some other secured and protected manner to assure that the proper use is made of such loans.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.8 Fees and charges in connection with a state aid grant or housing finance agency mortgage loan

All fees and charges associated with the acquisition of a State aid grant or Housing Finance Agency mortgage loan shall be at a rate determined by the Office of Mental Health and Housing Finance Agency. All fees and charges associated with the acquisition and operation of the Facilities Development Corporation mortgage loan program shall be at a rate determined by the Office of Mental Health and approved by the Director of the Division of the Budget.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.9 Local governmental unit approval of the project

(a) The applicant must procure written approval of the project from the local governmental unit or appeal the withholding of that approval to the OMH.

(b)

(1) Certification, in the case of an application for a Housing Finance Agency or Facilities Development Corporation mortgage loan, that the project is consistent with its plan for the provision of services for the mentally disabled; and/or

(2) Written agreement, in the case of application for a State aid grant, unless the applicant is a local government.

(c) If the proposal is not approved, the applicant may appeal the local governmental unit's decision to the commissioner, unless the application involves the direct expenditure of local tax levy funds.

(1) The appeal must be made within 30 days from the date that the applicant has been notified of the refusal to approve or certify. In the absence of such notification, the appeal may be made 30 days after the submission of the proposal to the local governmental unit.

(2) The appeal must be in writing with a copy sent by certified mail, return receipt requested, to the local governmental unit and the Office of Mental Health.

(3) The written appeal must include:

(i) a statement regarding any changes to the proposal since approval of the certificate of need;

(ii) a statement of facts demonstrating that the applicant has submitted the proposal to the local governmental unit; that the local governmental unit has refused to approve, or has not responded; and, that the specified interval has transpired since that proposal was submitted to the local governmental unit; and

(iii) copies of relevant documents including the submitted proposal and the decision of the local governmental unit.

(d) The local governmental unit shall have 30 days after receipt of the applicant's request for an appeal to reply to the Office of Mental Health, in writing, with a copy forwarded by certified mail, return receipt requested, to the applicant. Such reply shall set forth the basis for the decision not to approve or certify.

(e) Thirty days after the expiration of the time to reply, the commissioner or his designee, shall:

(1) attempt to informally conciliate the applicant and the local governmental unit; then,

(2) dismiss the appeal if the appeal is without merit; or

(3) schedule a hearing, if a substantial basis for appeal has been presented by the applicant, and the efforts of conciliation have failed.

(f) The commissioner, or a hearing officer appointed by the commissioner, shall conduct the hearing.

(1) Notice of the hearing shall be given to the applicant, the local governmental unit, and such other persons as the commissioner may deem advisable.

(2) The applicant, the representatives of the local governmental unit, appropriate representatives of the Office of Mental Health and other interested individuals may present their views to the commissioner on the merits of the appeal. The hearing shall not be adjudicatory in nature and the rules applying to quasi-judicial hearings shall not apply.

(3) The commissioner shall whenever possible designate a place in the county seat of the county from which the appeal has arisen for the conduct of the hearing.

(g) A decision shall be made by the commissioner or the hearing officer, as soon as possible after the date of the hearing, on the appeal. The local governmental unit and the applicant shall be notified of the decision. In every case where a decision is rendered in favor of the applicant's proposal, the requirements of local government agreement or certification, shall be deemed to have been satisfied.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.10 Assurances from the applicant

In addition to any other requirements imposed by law, each State aid grant, Facilities Development Corporation mortgage loan and Housing Finance Agency mortgage loan shall be subject to the condition that the applicant will furnish and comply with the following assurances and conditions, execute the documents necessary to assure such compliance and secure the interests of the OMH in the property upon which the facility is, or will be, located.

(a) Project operation.

(1) The facility will furnish a community mental health service as stated in the application for the State aid grant, Facilities Development Corporation mortgage loan or Housing Finance Agency mortgage loan as subsequently amended with and upon the approval of the Office of Mental Health.

(2) The applicant will operate and maintain the facility, or cause its operation and maintenance, to be in accordance with standards prescribed by the OMH for the operation and maintenance of such facilities.

(3) The applicant will conform to all the applicable requirements of the local services or the unified services plan as well as the applicable requirements of this Title.

(4) All portions and services of the entire facility for which a State aid grant under this act is sought will be made available without discrimination because of age, creed, color, national origin, sex, disability, marital status, or arrest or criminal accusation not presently pending against that individual which was followed by a termination of that criminal action or proceeding in favor of the individual, as defined in subdivision two of section 160.50 of the Criminal Procedure Law, unless such discrimination is in fact a segregation based upon legitimate clinical needs and concerns and not a complete denial of the provision of services.

(5) No professionally or otherwise qualified person will be discriminated against on account of age, creed, color, national origin, sex, disability, marital status, or arrest or criminal accusation not presently pending against that individual which was followed by a termination of that criminal action or proceeding in favor of that individual, as defined in subdivision two of section 160.50 of the Criminal Procedure Law with respect to the privilege of professional practice or employment in the facility.

(6) The applicant will operate the community mental health program, described in the application as subsequently amended with and upon the approval of OMH, in the facility constructed, reconstructed, rehabilitated or acquired with a State aid grant, Facilities Development Corporation mortgage loan or Housing Finance Agency mortgage loan for a 20-year period or the term of the Facilities Development Corporation mortgage loan, whichever is greater. The applicant shall not make any changes in the nature of the program within the aforementioned period without the prior written approval of the OMH.

(b) Site ownership. The applicant may not transfer, sell, assign, lease or encumber, in whole or in part, the real property acquired through a State aid grant, or, transfer, sell, assign or hypothecate, in whole or in part, the shares of stock of the cooperative corporation or the proprietary lease or leasehold or contractual agreement acquired with a State aid grant without the prior written approval of the OMH.

(1) The OMH's approval of the final working drawings and specifications will be obtained before the project is advertised or placed on the market for bidding. The final working drawings and specifications shall be in conformity with the general standards of construction and equipment as prescribed by the OMH.

(2) The applicant will cause the acquisition, construction, reconstruction or rehabilitation of the facility to be brought to final completion in accordance with the final drawings and specifications or the application as subsequently amended with and upon the approval of the OMH.

(3) The applicant will provide and maintain competent and adequate architectural or engineering supervision and inspection at the construction site to insure that the completed work conforms with the approved plans and specifications.

(d) Construction contracts. The applicant will comply with the following conditions in regard to all construction contracts:

(1) The actual construction work will be performed pursuant to the lump sum (fixed price) contract method.

(2) Adequate measures will be employed to obtain competitive bidding prior to awarding the construction, rehabilitation, or reconstruction contract either by public advertisement and/or circularizing three or more prospective bidders. The contract will be awarded to the responsible bidder submitting the lowest bid that substantially conforms to the request for bids. This requirement may be waived for contracts whose total cost is anticipated to be, and is in fact, below $10,000.

(3) Where Housing Finance Agency mortgage loan is not involved, the purchase and installation of equipment which is unique to the facility, as well as kitchen, laundry and laboratory equipment, need not be considered construction work for the purpose of this section except that if open competitive bidding is employed to obtain any or all of these items, the award shall be made to the responsible bidder submitting the lowest acceptable bid.

(4) The applicant will not enter into any construction contract in excess of the estimated cost approved in the application as subsequently amended with and upon the written approval of the OMH.

(5) The applicant will not make any changes from the project as approved in the application as subsequently amended with and upon the written consent of the OMH.

(6) The following conditions and provisions will be included in all construction contracts:

(i) The inclusion of the provisions of the General Municipal Law, the State Finance Law and the Public Authorities Law, in relation to statement of noncollusion in bids and proposals.

(ii) A provision that the contractor shall furnish performance and payment bonds, each of which shall be in the full amount of the contract price, and shall maintain during the life of the contract adequate fire, workers' compensation, public liability, and property damage insurance. Only upon prior written approval of the Office of Mental Health, this provision need not be required in the case of contracts whose lump sum amount is less than $150,000 and where market conditions prohibit the inclusion of this subparagraph. Such approval will be made only after a finding that the contractor has successfully completed a project within the previous two years for a value of at least 75 percent of the project for which the grant is sought, and, that the contractor or a controlling person has not been convicted of any offense involving solicitation in the awarding of bids or bribery within the past five years.

(iii) A provision that representatives of the OMH will have access at reasonable times to the project site during construction for inspection and that the contractor shall assist in such inspections and provide proper facilities for access and inspection.

(7) The applicant may request that the OMH waive, alter or revise any of the construction contract requirements based upon sufficient cause. Sufficient cause shall include, but not be limited to, labor and/or market conditions.

(e) Project review.

(1) The applicant will maintain adequate books and records so as to document, record and summarize the details of all sources of revenue and expenditures of the project. The applicant will maintain accounting and fiscal records in accordance with generally accepted accounting principles and the Office of Mental Health requirements and permit the OMH or their representatives to inspect and/or audit same, and will assist in such inspections and audits.

(2) The applicant will furnish progress reports and such other information, at appropriate intervals, as the OMH may require. Such information may include, but is not limited to, copies of reports by architects and engineers that are required to be made by this Part and the Office of Mental Health.

(f) Applicant's breach of assurance. In accepting a Housing Finance Agency mortgage, a Facilities Development Corporation mortgage loan or a State aid grant, made pursuant to this Part, the applicant agrees to abide by the laws of the State of New York, the rules, regulations and guidelines of the Office of Mental Health, the promises and assurances contained in the application for a State aid grant, a Facilities Development Corporation mortgage loan or a Housing Finance Agency mortgage, and those contained in the documents executed therewith. In the event of the breach of any of the aforementioned, it is agreed that the Office of Mental Health may pursue any and all of the following remedies:

(1) The Office of Mental Health shall have the right to possession and occupancy of the facility for the unexpired term during which the applicant has agreed to operate the facility.

(i) The exercise of this right will be made subject to any rights of the Housing Finance Agency, or any other lienor who acquired its interest in accordance with this Part, pursuant to any mortgage or lien on the facility.

(ii) This shall include the right to sublet or contract with third parties for the operation of the facility without any charge or fee due the applicant therefor.

(iii) Following its taking possession, the Office of Mental Health shall be responsible for all normal maintenance and repairs on the facility.

(2) The Office of Mental Health shall have the right to recover the value of the State aid grant in accordance with the provisions of this section and those contained in such agreements executed pursuant to section 521.13 of this Part.

(i) The Office of Mental Health may declare the value of the State aid grant immediately due upon the substantial breach of any of the aforementioned rules and regulations.

(ii) The value of the State aid grant shall include the following:

(a) the amount of the State aid grant issued on behalf of the applicant in accordance with the application;

(b) the amount of any payments on any mortgage lien, judgment, or other encumbrance upon the facility, incurred by or on behalf of the applicant, which in the sole discretion of the Office of Mental Health, the Office of Mental Health is obligated to make;

(c) the cost of repairs to premises possessed by the Office of Mental Health by operation of this Part, that are capital expenditures, as that phrase is commonly understood; and

(d) the reasonable value of the services provided by the Office of Mental Health in obtaining possession to the premises and collecting the value of the State aid grant.

(iii) A credit equal to five percent of the amount of the State aid grant issued to the applicant will be applied against the obligation of the applicant, for each year the applicant has operated the facility in accordance with the aforementioned rules and regulations.

(3) This obligation of the applicant shall become a lien, analogous to a second mortgage, upon the real property of the facility as soon as the Office of Mental Health disburses the State aid grant. The lien of the State aid grant will be junior only to:

(i) those liens to which the Office of Mental Health has consented to subordination, in accordance with section 521.13(c) of this Part; or

(ii) liens pre-existing the making of the State aid grant.

(4) The Office of Mental Health, in its sole discretion, may elect to pursue any of these remedies without affecting a waiver of any other rights or remedies. Nothing herein contained shall affect the Office of Mental Health's rights regarding repayment of the amount of the applicant's State aid grant, nor create any defense for the applicant in a proceeding to enforce repayment of these amounts, or secure possession of the property.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.11 Third parties

(a) If the applicant has received the prior written approval of the Office of Mental Health to authorize a third party to operate the facility or which a State aid grant or Housing Finance Agency mortgage pursuant to this Part is sought or has been received, then the applicant will obtain contractual assurances equivalent to the assurances contained in this Part from any such agency. The OMH shall at all times retain the authority to review such contractual arrangements and determine their adequacy.

(b) If the applicant intends to enter into a rental agreement or other agreement whereby the applicant obtains possession to the premises upon which the facility will be located, with an entity which is owned or controlled by the applicant, the applicant will require that entity to contractually agree to permit the OMH, its designees or representatives to have access to the books of that entity as they relate to the subject premises. Such contractual arrangements will be made on the advice and consent of the OMH. The OMH may waive this requirement when in the sole discretion of the OMH it is appropriate to do so.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.12 Conflicts of interest

(a) No person who is a director, officer or employee of the applicant or an officer or employee of the State and no firm, organization, corporation, or partnership in which any such person, his or her spouse, children, or parents has any interest, direct or indirect, may receive, by contract or otherwise, funds granted by the State.

(b) Upon the written request by the applicant the OMH may waive the provisions of subdivision (a) of this section by giving prior written approval after full disclosure of all relevant facts and circumstances.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.13 Program and fiscal requirements for a facilities development corporation mortgage loan

(a) A voluntary agency may apply to the commissioner for a Facilities Development Corporation loan. The commissioner may deny such an application if the conditions set forth in this section are not met.

(b) A completed application must be submitted to the commissioner in the format and on forms prescribed by the commissioner. Such forms may include a schedule of proposed costs to be met by the Facilities Development Corporation mortgage loan. The application must include a statement that the applicant and the Office of Mental Health intend that the State aid grant must be repaid when and if the applicant receives a Facilities Development Corporation mortgage loan pursuant to this Part; provided that such repayment shall be intended only for that portion of the State aid grant represented by underlying costs for which the Facilities Development Corporation mortgage loan is made.

(c) A certificate of need application must have been submitted pursuant to the Office of Mental Health regulations and conditionally approved prior to transfer of Facilities Development Corporation mortgage loan proceeds to a voluntary agency.

(d) The voluntary agency must prepare and submit a certificate of incorporation in a form satisfactory to the commissioner for the corporation which will receive the Facilities Development Corporation mortgage loan. The voluntary agency must demonstrate to the satisfaction of the commissioner that the corporation has obtained a certificate from the United States Internal Revenue Service that it is an exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code and a statement of exemption from the New York State Department of Taxation and Finance.

(e) The property rights provisions of section 521.6 of this Title are incorporated into this section and shall govern the securing of Facilities Development Corporation mortgage loans. Notwithstanding the foregoing, the Office of Mental Health may impose further limitations or requirements in demonstrating possession of these rights, as it deems reasonable due to the nature of this form of financing.

(f) The voluntary agency must execute any mortgage, security or other financing agreement with respect to real and personal property as may be required by the commissioner.

(g) The voluntary agency must execute an agreement with the Office of Mental Health in the format to be prescribed by the commissioner, whereby the Office of Mental Health may recover on a periodic basis a portion of the Facilities Development Corporation mortgage loan, which may include interest, fees, costs and charges, until the loan is satisfied.

(h) A voluntary agency must establish accounting and fiscal records in a manner approved by the commissioner to reflect the receipt and expenditure of Facilities Development Corporation mortgage loan funds. A voluntary agency whose application under this section has been accepted must maintain such records in such a manner, and must make fiscal reports to the commissioner in such a manner and at such intervals as he may require.

(i) The use of Facility Development Corporation mortgage loan funds for the financing or refinancing of any construction, reconstruction, design, acquisition, rehabilitation or improvement of a community facility must be approved by the Director of the Division of the Budget.

(j) A voluntary agency may use a Facilities Development Corporation mortgage loan to meet only the following costs:

(1) the design construction, acquisition, reconstruction, rehabilitation or improvement of a facility;

(2) the acquisition of any interest in or option to purchase an interest in land, and any improvements thereon, required as the site of the facility or for use in connection with the facility, and preparation of such site and land;

(3) feasibility studies, designs, surveys, plans, and specifications;

(4) program development costs;

(5) engineering and architectural services;

(6) indemnity and surety bonds and insurance premiums;

(7) equipment including machinery, fixtures, furnishings and other personal property required for the operation of the facility;

(8) costs and expenses in connection with the issuance of the bonds and notes by the Medical Care Facilities Finance Agency to finance the facility, including: interest from the date of such issuance to the date such interest is paid by the Medical Care Facilities Finance Agency from the payments made by the voluntary agency; related administrative and direct costs and fees of the Medical Care Facilities Finance Agency, trustees, depositories and paying agents; and fees and expenses of financial advisers and consultants in connection with such issuance;

(9) the cost of financing and refinancing any of the costs enumerated in this Part, including interest;

(10) the development period fee imposed by the commissioner. The development period shall be the charge payable to the Office of Mental Health by the voluntary agency for services rendered in connection with a Facilities Development Corporation mortgage loan from the inception of the project to, but not including, the initial occupancy date; and

(11) such other costs as the commissioner may determine to be reasonable and necessary.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 521.14 Separability

If any section, paragraph or provision of this Part shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the section, paragraph or provision thereof directly involved in the controversy in which such judgment has been rendered.

Part 522 Directors of Mental Hygiene Facilities As Representative Payees

N.Y. Comp. Codes R. & Regs. Tit. 14 § 522.1 Background and intent

(a) The Social Security Administration is a Federal government agency that administers two major benefit programs. The largest of these programs is the Retirement, Survivors, and Disability Insurance program (Social Security). The other is the Supplemental Security Income (SSI) program.

(b) The Social Security program protects employees and their families from a loss of earnings because of retirement, death, or disability. Social Security benefits are based on the earnings of an employee who has paid into the system by paying Federal Insurance Contributions Act tax for a specified period of time. An employee, or his or her family, can receive Social Security benefits based on retirement, disability, or death.

(c) The SSI program is a federal income maintenance program for aged, blind, and disabled persons with little or no income or resources. To receive SSI payments, a person must be age 65 or older, blind or disabled and must have limited income and resources.

(d) The Veterans Administration is a Federal government agency that administers benefit programs for veterans.

(e) The Social Security Administration Representative Payee Payment Program and the Veterans Administration provide assistance to persons who are unable to manage their federal benefits, permitting payment of the benefits to designated fiduciaries, referred to as "representative payees" by the SSA and as "fiduciaries" by the Veterans Administration, who receive and manage payments on behalf of beneficiaries. Other state and federal benefit programs may approve similar arrangements to assist beneficiaries who are not capable of handling their own benefits.

(f) In some cases, facility directors who serve as representative payees may receive lump sum retroactive benefits on behalf of a beneficiary; in other cases, facility directors may learn about a windfall payment due to an individual who is receiving services from the facility. In both situations, the payments may, in combination with other resources of the individual, render the individual ineligible for government benefits on which the individual relies or plans to rely upon discharge from the facility. In these cases, a Medicaid exception trust or similar device may provide a mechanism to preserve the assets for the benefit of the individual without rendering the individual ineligible for the needed benefits.

(g) The purpose of this regulation is to implement the provisions of Mental Hygiene Law Section 33.07(e) regarding the management and protection of monthly benefits and retroactive awards received by facility directors in the capacity of representative payee; the use of Medicaid exception trusts, including special needs trusts and similar devices; notice to qualified persons as defined by Mental Hygiene Law 33.16 regarding the intent of a facility director to apply to be an individual's representative payee; and the appropriate establishment and maintenance of a discharge account for future needs of individuals for whom directors serve as fiduciaries.

History

Adopted by New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 522.2 Applicability

This Part shall apply to all facilities operated or licensed by the Office of Mental Health.

History

Adopted by New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 522.3 Legal base

(a) Section 7.09 of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(b) Section 29.23 of the Mental Hygiene Law authorizes directors of facilities operated by the Office of Mental Health to receive or obtain funds or certain personal property due or belonging to individuals receiving services from their facilities up to an amount or value not exceeding twenty-five thousand dollars, and to seek to place, to the extent permissible by law, funds in excess of the appropriate eligibility level for government benefits into a Medicaid exception trust, including a special needs trust or similar device, after the needs of the individual have been met. The statute also mandates the director to seek to establish such a trust when the director receives a windfall payment on behalf of an individual which, in combination with other funds held on behalf of such person, would cause the individual to become ineligible for government benefits.

(c) Section 33.07 of the Mental Hygiene Law requires the Commissioner of the Office of Mental Health to promulgate regulations regarding the management and protection of funds received by facility directors as representative payees for individuals receiving services from their facilities. The statute also mandates the director of a facility operated by the Office of Mental Health to seek to establish a Medicaid exception trust, including a special needs trust or similar device, when the director receives a lump sum retroactive benefit, as defined in the statute, in his or her capacity as representative payee on behalf of an individual which, in combination with other funds held on behalf of such person, would cause the individual to become ineligible for government benefits.

(d) 20 C.F.R. Section 404.2040(d) provides that representative payees may not be required to use benefit payments to satisfy a debt of the beneficiary, if the debt arose prior to the first month for which payments are certified to a payee. If the debt arose prior to this time, a payee may satisfy it only if the current and reasonably foreseeable needs of the beneficiary are met.

(e) Section 43.03 of the Mental Hygiene Law recognizes that although the Commissioner of the Office of Mental Health is authorized to reduce or waive fees in cases of inability to pay or other reason, the patient, and any fiduciary or representative payee holding assets for him or her, or on his or her behalf are jointly and severally liable for the fees for services rendered to the patient.

History

Adopted by New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 522.4 Definitions

For purposes of this Part:

(a) Beneficiary means an individual who is receiving Social Security or other federal benefits.

(b) Discharge Account means an account established for the benefit of an individual to facilitate his or her discharge from a facility into a less restrictive environment (e.g., for a security deposit on an apartment or utilities, the purchase of home furnishings).

(d) Facility director means the executive director of a State-operated psychiatric center or the executive director of a facility licensed by the Office of Mental Health.

(e) Fiduciary means a person or entity who is authorized to hold money and property in trust for another individual and who has a legal duty to manage and use those assets in the best interests of the individual.

(f) Lump sum retroactive benefit means a lump sum retroactive payment of a federal or state benefit that exceeds the expected monthly recurring amount for a reason other than a delay in processing an application, changing a representative payee or similar administrative delay.

(g) Medicaid exception trust means a trust that contains the assets of the beneficiary and meets the criteria set forth in 42 U.S.C. Section 1396p(d)(4) and N.Y. Social Services Law Section 366.2(b)(2)(iii) such that both the principal and income of such trust is considered exempt for purposes of determining the beneficiary's eligibility for Medicaid and/or Supplemental Security Income.

(h) Office means the New York State Office of Mental Health.

(i) Qualified Person means a qualified person as defined in Mental Hygiene Law Section 33.16.

(j) Representative payee means an individual or organization appointed by the Social Security Administration to receive and manage the Social Security or SSI benefits of another person or, for purposes of this regulation, any individual or organization appointed by a federal or state benefit program to receive and manage the benefits of another person as a fiduciary.

(k) Similar device means an individual or pooled discretionary trust, funded pursuant to an agreement authorized by Mental Hygiene Law Section 43.03(b) by the Office of Mental Health or a fiduciary holding assets for the beneficiary, which maintains the beneficiary's eligibility for government benefits and, upon the beneficiary's death, provides for the remainder interest to be paid to the State for the unpaid cost of care and maintenance provided by the Office during the beneficiary's lifetime.

(l) Social Security Benefits means benefits paid as retirement, survivors, and disability insurance pursuant to Title II of the Social Security Act.

(m) SSI Benefits means Supplemental Security Income (SSI) benefits paid by the Social Security Administration under Title XVI of the Social Security Act for aged, blind, and disabled persons with little or no income or resources.

(n) Treatment team means the interdisciplinary team comprised of clinical staff that is responsible for developing and implementing a treatment plan for a patient or resident.

(o) Windfall payment means a one-time payment to a patient in a facility operated by the Office, such as a gift, an inheritance, lottery winnings, or court-ordered judgment or settlement.

History

Adopted by New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 522.5 Determination of need for representative payee

(a) When a question is raised as to whether a beneficiary is capable of managing his or her benefits, the treatment team or, in the case of a facility licensed by the Office, staff assigned to the beneficiary shall meet to determine whether a physician should examine the beneficiary and assess the beneficiary's capacity to manage or direct the management of benefits in his or her own best interest. This meeting shall be documented in the beneficiary's clinical or other appropriate record.

(b) In the event that the beneficiary has been referred for examination, a physician shall conduct the examination and notify the facility director regarding the physician's determination as to whether the beneficiary is capable of managing or directing the management of benefits in his or her own best interest.

(c) A facility director shall not apply to serve as fiduciary or representative payee for a beneficiary who is receiving services from a facility and does not already have a representative payee unless:

(1) a physician determines that the beneficiary is not capable of managing or directing the management of benefits in his or her own best interest, which determination shall be documented in the beneficiary's clinical or other appropriate record; and

(2) notice of the facility director's intent has been provided pursuant to Section 522.6(a) of this Part or, if notice has not been provided, the reason for not providing notice is documented in the beneficiary's clinical or other appropriate record.

History

Adopted by New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 522.6 Notice to qualified persons of intent and application for representative payee status

(a) Whenever a facility director intends to apply to be a fiduciary or representative payee of a beneficiary who is receiving services from the facility, the facility director shall give written notice to qualified persons, including the beneficiary, of the facility director's intent to make such application in a manner consistent with federal and state laws governing the confidentiality of individually identifying health information.

(1) The notice shall be provided at least five business days before the facility director applies to become fiduciary or representative payee.

(2) If the beneficiary would lose any benefits because of a delay in the facility director's application to become fiduciary or representative payee, the facility director may proceed with the application without prior notice or without the lapse of five business days. In such instances, the facility director shall provide the notice as soon as practicable after making the application or within the maximum time which is practicable between the notice and the application.

(3) A facility director shall not be required to provide notice pursuant to this section if the treating practitioner, as defined in Section 33.16 of the Mental Hygiene Law, determines that notice to a particular qualified person, including the beneficiary, would be clinically contraindicated or the beneficiary objects to such notice.

(4) The notice shall be deemed to have been provided if hand delivered or mailed by first class mail to the last known address of the recipient(s) of the notice.

(5) The notice to beneficiaries shall include information that the Mental Hygiene Legal Service is available to advise patients or facility residents regarding the application process.

(b) When a facility director submits an application to the Social Security Administration or other federal or state agency to serve as a beneficiary's representative payee, he or she shall provide written notice of the application in a manner consistent with federal and state laws governing the confidentiality of individually identifying health information, to:

(1) the existing representative payee, if any; and

(2) in the case of facilities operated by the Office, the Mental Hygiene Legal Service of the judicial department in which the facility is located.

(c) During the application process or following the appointment of a facility director as a beneficiary's representative payee, the facility shall ensure that the beneficiary is apprised of his or her right at any time to request to be his or her own payee, or to request a change in representative payee. Such request shall be directed to the Social Security Administration or whichever federal or state program made the appointment.

History

Adopted by New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 522.7 Required policies and procedures

(a) Any facility director who serves or may serve as representative payee for beneficiaries receiving services from such facility shall establish policies and procedures which address the management and use of funds paid to the director as representative payee, consistent with the fiduciary responsibilities of a representative payee pursuant to the governing requirements of Social Security or other federal law and the comparable duty under State law. At a minimum, such policies and procedures shall include provisions for:

(1) establishment and maintenance of beneficiary accounts (in interest bearing accounts where practicable) with individual patient accounting to segregate balances and permit the application of interest earned, if any, on a pro-rated basis;

(2) internal controls that keep the beneficiary accounts and funds secure, prevent identity theft, provide specific authorization for check signatories, and document receipts and disbursements;

(3) the use of petty cash, including requirements for documenting expenditures by receipts and the reconciliation of cash provided;

(4) the opportunity for beneficiaries, or someone authorized to act on their behalf, to review deposits to and disbursements from their accounts at least quarterly; and

(5) designation of an appropriate staff member to act as a liaison between the facility director and the beneficiary.

(b) For facilities operated by the Office, such policies and procedures shall also include provisions requiring the facility to consider:

(1) the establishment of an appropriate Discharge Account if funds are available from accumulated Social Security or other federal benefits and/or other resources or income of the beneficiary; provided, however, that such Discharge Account, in addition to other resources held by the beneficiary, shall not exceed the monetary limits necessary to maintain his or her eligibility for government benefits in the community; and

(2) the use of a Medicaid exception trust or similar device where legally mandated or deemed necessary and appropriate by the Office of Mental Health. To determine whether and/or what type of Medicaid exception trust or similar device may be necessary and appropriate, the following factors shall be considered along with any other factors relevant to the particular beneficiary's circumstances:

(i) the beneficiary's current and future needs, including a burial fund;

(ii) the amount of the resources to be placed in trust;

(iii) the beneficiary's age, current diagnosis and functional capacity (including capacity to manage his or her funds);

(iv) the beneficiary's prognosis for discharge into the community;

(v) the beneficiary's need for government benefit eligibility in the community;

(vi) the availability and willingness of a family member, friend, guardian or other appropriate individual to serve as trustee of such a trust or as a liaison to such a trust;

(vii) the impact of anticipated costs to establish and maintain the trust and guardianship, if any, on the amount of trust resources that will be available to the beneficiary;

(viii) the eligibility of the beneficiary to establish a trust; and

(ix) the availability of a pooled community trust in which beneficiary is eligible to participate.

History

Adopted by New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

Part 524 Incident Management Programs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.1 Background and intent

(a) The purpose of this Part is to ensure that providers of mental health services develop and implement effective incident management programs in order to protect the health and safety of patients and enhance their quality of care. Incident management programs include the components of effective abuse protection; the classification of incidents; tracking and trending of incidents; and implementing effective actions to protect individuals served from harm.

(b) It is the expectation of the Office of Mental Health that providers of mental health services under its jurisdiction will afford their patients appropriate services in a caring and hospitable environment that is recovery-oriented and free from harm. In order to create this environment, providers must seek to eliminate, wherever possible, the occurrence of incidents, i.e., episodes of harm or potential harm. This Part thus requires providers to assure that any reportable incidents are reported and analyzed, and the appropriate corrective, remedial, or disciplinary action occurs, in accordance with applicable federal or state law and regulations.

(c) Incident management programs must also incorporate principles of clinical risk management, which emphasize the improvement of systems and processes. Clinical risk management involves review of incident patterns and trends to identify the facts, circumstances, processes, systems, and areas of risk that may have contributed to such incidents in order to identify opportunities for performance improvement.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.2 Legal base

(a) Section 7.07 of the Mental Hygiene Law gives the Office of Mental Health the responsibility for seeing that persons with mental illness are provided with care and treatment, that such care, treatment and rehabilitation is of high quality and effectiveness, and that the personal and civil rights of persons receiving care, treatment, and rehabilitation are adequately protected.

(b) Section 7.09 of the Mental Hygiene Law grants 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 or her jurisdiction and to set standards of quality care.

(c) Subdivision (b) of Section 7.21 of the Mental Hygiene Law requires directors of facilities operated by the Office of Mental Health to investigate, or cause to be investigated, every reportable incident in accordance with Article 11 of the Social Services Law, and to require allegations of abuse and neglect and significant incidents to be reported to the Vulnerable Persons' Central Register. Directors of facilities must also notify the Vulnerable Persons' Central Register if it appears that a crime may have been committed and such Register shall notify law enforcement as appropriate. Pursuant to this Section, the Vulnerable Persons' Central Register must notify the Board of Visitors and the Mental Hygiene Legal Service of every complaint of abuse or neglect and the results of all related investigations.

(d) Section 29.29 of the Mental Hygiene Law requires the establishment of uniform standards and procedures for the compilation and analysis of incident reports in facilities operated by the Office of Mental Health.

(e) Section 31.11 of the Mental Hygiene Law requires programs licensed by the Office of Mental Health to notify the district attorney or other law enforcement official and the Commissioner or his or her authorized representative if it appears that a crime may have been committed against a patient.

(f) Section 31.16 of the Mental Hygiene Law provides that the Commissioner of the Office of Mental Health may impose a fine upon a finding that the holder of an operating certificate has failed to comply with the provisions of any applicable statute, rule, or regulation.

(g) Section 33.23 of the Mental Hygiene Law requires 24-hour telephone notification of qualified persons, as defined in Section 33.16 of such law, of certain incidents that occur at facilities.

(h) Section 33.25 of the Mental Hygiene Law requires the release of records and documents pertaining to allegations and investigations of abuse or neglect to qualified persons, as defined in Section 33.16 of the Mental Hygiene Law, upon their request.

(i) Section 556 of the Executive Law provides the Justice Center the authority to make recommendations of preventive and remedial actions to the Office of Mental Health in response to investigations of allegations of abuse or neglect involving patients.

(j) Section 557 of the Executive Law requires that directors of State-operated facilities and directors of licensed programs report deaths of individuals in their care and any allegations of abuse or neglect to the Justice Center.

(k) Article 6, title 6 of the Social Services Law requires the reporting of suspected abuse or neglect by a caretaker in a foster family care, day care, or family setting of persons under 18 years of age to the Statewide Central Register of Child Abuse and Maltreatment.

(l) Section 490 of the Social Services Law requires the Office of Mental Health to promulgate regulations governing the development of incident management programs; such regulations must be approved by the Justice Center as consistent with its standards and guidelines.

(m) Sections 491 and 492 of the Social Services Law require the reporting of allegations of abuse and neglect and significant incidents to the Vulnerable Persons' Central Register.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.4 General definitions

As used in this Part.

(a) Custodian means:

(1) a director, operator, employee or volunteer of a mental health provider; or

(2) a contractor that performs services pursuant to a contract that permits regular and substantial contact with patients of a mental health provider.

(b) Discovery means at the time a Mandated Reporter witnesses an activity which appears to be a Reportable Incident or when any other person comes before the Mandated Reporter in his or her professional or official capacity and provides information that gives the Mandated Reporter reasonable cause to suspect that a Reportable Incident has occurred.

(c) Employee or Staff means an administrator, employee, consultant, volunteer or student affiliated with a mental health provider as such term is defined in this Section, or a person employed by an entity which has a contract with such a program or provider, but shall not include employees or volunteers who are also patients of the mental health provider.

(d) First aid means one-time treatment, and any follow up, of minor scratches, cuts, burns, splinters, or other minor injuries which do not ordinarily require medical care.

(e) Incident means an event, involving a patient who receives services provided by a mental health provider which has, or creates a risk of, an adverse effect on the life, health, safety, or welfare of the patient or another person. For purposes of this Part, the term "incident" shall include any incident requiring reporting and investigation under this Part, including Reportable incidents, patient death, and incidents that must be reported to the Office of Mental Health.

(f) Investigation means the systematic collection and examination of the information and circumstances surrounding an incident.

(g) Justice Center means the New York State Justice Center for the Protection of People with Special Needs.

(h) Local governmental unit means the unit of local government given authority in accordance with Article 41 of the Mental Hygiene Law to provide local or unified services.

(i) Mandated Reporter means a certain person or professional, identified in subdivision (5) of Section 488 of the Social Services Law, not including a patient, who is required to report allegations of Reportable Incidents to the Vulnerable Persons' Central Register immediately upon discovery, including:

(1) a custodian; or

(2) a human services professional, including any: physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; licensed practical nurse; nurse practitioner; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst, certified behavior analyst assistant; licensed speech/language pathologist or audiologist; licensed physical therapist; licensed occupational therapist; hospital personnel engaged in the admission, examination, care or treatment of persons; Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; any other child care or foster care worker; mental health professional; person credentialed by the office of alcoholism and substance abuse services; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.

(j) Mental health provider means a provider or program operated or licensed by the Office of Mental Health.

(k) Minor injury or harm means:

(1) physical pain or injury requiring no medical treatment or intervention, or no medical treatment or intervention beyond first aid; or

(2) no apparent psychological harm, or psychological harm that does not require a significant change in psychotropic or psychotherapeutic intervention.

(l) Office means the New York State Office of Mental Health, the state oversight agency for mental health providers, as such term is defined in this Section.

(m) Patient means an individual who receives services from a mental health provider.

(n) Qualified person means any person who may request access to a patient's clinical record in accordance with Section 33.16 of the Mental Hygiene Law.

(o) Reportable Incident means Significant Incidents and allegations of Abuse and Neglect that must be reported to the Justice Center for the Protection of Persons with Special Needs and the Office.

(p) Restraint means the use of any manual, pharmacological or mechanical measure or device to immobilize or limit the ability of a person receiving services to freely move his or her arms, legs or body.

(q) Serious injury or harm means:

(1) physical harm requiring medical treatment or intervention beyond first aid, (excluding routine diagnostic tests such as laboratory work, X-rays, or scans if no medical treatment is provided);

(2) psychological harm evidenced by negative changes in affect, behavior, cognition, or which necessitate a significant change in psychotropic or psychotherapeutic intervention; or

(3) a risk for life threatening physical injury or for psychiatric emergency or trauma

(r) Significant incident means a Reportable Incident, other than an incident of abuse or neglect, that because of its severity or the sensitivity of the situation may result in, or has the reasonably foreseeable potential to result in, harm to the health, safety or welfare of a patient.

(s) Vulnerable Persons' Central Register means the statewide Vulnerable Persons' Central Register of the Justice Center established pursuant to Section 492 of the Social Services Law.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.7 Incident reporting requirements

The following incidents are considered Reportable Incidents which must be reported to the Justice Center and the Office in accordance with the provisions of Section 524.8 of this Part:

(a) Allegations of Abuse or Neglect:

(1) Physical abuse;

(2) Psychological abuse;

(3) Sexual abuse;

(4) Deliberate Inappropriate Use of Restraint;

(5) Obstruction of reports of Reportable Incidents;

(6) Unlawful use or administration of controlled substance;

(7) Use of Aversive Conditioning; or

(8) Neglect.

(b) Significant Incidents: The following incidents are Significant Incidents when they occur on program premises or when the patient was under the actual or intended supervision of a custodian when the event occurred:

(1) Assault;

(2) Crime;

(3) Falls by patients;

(4) Fights;

(5) Financial exploitation;

(6) Firesetting;

(7) Injury of unknown origin;

(8) Medication errors;

(9) Missing patient

(10) Mistreatment;

(11) Other Incident;

(12) Self abuse;

(13) Severe adverse drug reaction;

(14) Sexual contact between children;

(15) Sexual assault;

(16) Suicide attempt;

(17) Verbal aggression by Patients;

(18) Wrongful conduct.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.10 Additional Incidents reportable to the Office of Mental Health

(a) In addition to Reportable Incidents, pursuant to Mental Hygiene Law Section 29.29, State operated or licensed mental health providers shall immediately notify the Office, in a form and format prescribed by the Office, of the following incidents when they occur off the premises of the facility or program or when the patient was not under the intended or actual supervision of a custodian.

(1) Crimes in the Community

(2) Missing Subject of AOT order; and

(3) Suicide Attempt, Off-Site.

(b) These incidents shall not be reported to the Vulnerable Persons' Central Register, but must be reported and investigated consistent with guidelines of the Office.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.11 Patient Death reporting

(a) State operated or licensed mental health providers are responsible for reporting the death of a patient who was enrolled in or receiving services from the facility or program at the time of the death, or whose death was within 30 days of discharge from a mental health program

(b) Reports of patient death must be made in accordance with the following:

(1) Justice Center Medical Review Board:

(i) The Justice Center Medical Review Board must be notified of the death of a patient of a State operated or licensed mental health provider who was enrolled in or receiving services from the facility or program at the time of the death, or whose death occurred within 30 days of discharge from a mental health program.

(ii) Such notification must be made immediately upon discovery of the death, and in no event later than 24 hours thereafter in the form and format prescribed by the Justice Center, and shall include:

(a) the name and age of the deceased;

(b) the date, time, location and circumstances of the death;

(1) was related to an accident;

(2) may have resulted from a suicide or homicide;

(3) may have resulted from a medication overdose, or the use of controlled substance or alcohol;

(4) occurred within 72 hours of the use of restraint or seclusion; or

(5) may be an unexplained death.

(iii) The Director or his/her designee shall submit any additional information requested by the Justice Center within 5 working days of such request, in the manner prescribed by the Justice Center.

(iv) In addition to the information submitted in accordance with subparagraph (iii) of this paragraph, a report of any autopsy performed on the decedent shall be submitted to the Justice Center within 60 working days of the report made to the Justice Center, provided, however, that the Justice Center may extend that timeframe for good cause shown.

(2) Coroner/medical examiner. The following shall be reported to the coroner/medical examiner:

(i) the death of a patient resulting from an apparent homicide, suicide, or unexplained or accidental cause;

(ii) the death of a patient which is unrelated to the natural course of illness or disease; or

(iii) the death of a patient which is related to the lack of treatment provided in accordance with generally accepted medical standards.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.13 Analysis, review, and monitoring of incidents

(a) Mental health providers are responsible for compiling and analyzing incident data for Reportable Incidents, incidents reported to the Office pursuant to Section 524.10 of this Part, and patient death, for the purpose of identifying possible patterns and trends and to determine the timeliness, thoroughness, and appropriateness of the provider's responses.

(1) At a minimum, incident data shall be analyzed according to incident type, patient involvement, location, date, and time, and employee involvement.

(2) Reviews shall not be considered to be complete until all relevant information, (including final investigation reports and relevant systems analyses), has been gathered, opportunities for improvement have been identified, and, if deemed necessary, plans of correction/prevention have been developed, implemented, and monitored.

(3) For investigations of reportable incidents, correction/prevention plans must be documented in accordance with guidelines of the Office.

(b) Incident Review Committees. Each mental health provider shall appoint a standing Incident Review Committee to assure that all Reportable Incidents, incidents reported to the Office pursuant to Section 524.10 of this Part, and patient death, are reviewed and monitored, that all incidents that may adversely affect the care and safety of patients are appropriately addressed, and that preventive and corrective measures are identified, as appropriate.

(1) Incident Review Committees may be organized on a provider-wide, multi-program or program-specific basis, and may have responsibilities other than those related to incident management. The composition of an Incident Review Committee must be such that a free and open exchange of information is ensured, in order to facilitate full and complete investigations. Providers shall maintain current documentation attesting that committee membership at least includes:

(i) members of the governing body of the mental health provider;

(ii) persons identified by the director of such provider, including some members of the following:

(a) direct support staff, which shall mean staff who are involved in the provision of direct care services;

(b) licensed health care practitioners;

(d) representatives of family, consumer, or advocacy organizations.

(2) The director of the mental health provider shall not be a member of the Incident Review Committee. For purposes of this Section, "director" shall mean:

(i) the Executive Director of a State operated facility; or

(ii) the Chief Executive Officer of a licensed provider of mental health services, as designated by the signatory (or his/her successor) of the Prior Approval Review form Part A Acknowledgment submitted in accordance with Part 551 of this title.

(3) The Incident Review Committee shall include a physician, on a regular membership or ad hoc basis. The physician shall participate in review of all medically related incidents.

(4) The scheduling of Incident Review Committee meetings shall in no way preclude the prompt and thorough review of each incident. Each Incident Review Committee shall meet within 45 days of completion of any pending investigation, or sooner, should the circumstances so warrant, but no less frequently than on a quarterly basis, to allow for the timely review and closure of incidents.

(5) Incident review committees shall take an active role in assuring that:

(i) Incidents are reported, managed, investigated and documented consistent with the provisions of this Part and with the provider's policies and procedures, and written recommendations are made to the appropriate staff and/or the director of the provider of services to correct, improve or eliminate inconsistencies;

(ii) necessary and appropriate corrective, preventive, and/or disciplinary action is taken to protect persons receiving services from harm and to safeguard against the recurrence of similar incidents;

(iii) if further investigation or if additional corrective, preventive, and/or disciplinary action is necessary, appropriate written recommendations are made to the director of the provider relative to the incident;

(iv) trends in incidents, (e.g., by type, person, site, employee involvement, time, date, circumstances, etc.), are identified, and recommendations are made regarding appropriate corrective, preventive, and/or disciplinary action to the director to safeguard against and reduce such recurring situations or incidents; and

(v) the provider's reporting and review practices, including the monitoring of the implementation of approved recommendations for corrective and preventive action, are effective.

(6) Incident review committee members who may bear some responsibility for an incident shall be excluded from the committee's deliberations regarding that incident.

(7) Written minutes of all meetings shall be maintained.

(i) Minutes shall indicate when review of a particular incident has been completed. Review shall be deemed complete when all relevant information, including the final investigative report, has been gathered, opportunities for improvement have been identified, and plans of correction/prevention have been developed and implemented.

(ii) Minutes are to be filed and otherwise maintained in a manner that ensures confidentiality.

(8) Reports based on the minutes shall be developed and submitted to the director of the mental health provider, as determined necessary by the committee. Such reports shall include a summary of the Committee's discussions, findings and recommendations, as well as follow-up actions taken to assure that all recommended preventive and/or corrective measure(s) are implemented.

(9) All members of the Incident Review Committee must be trained in relevant confidentiality laws and regulations

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.14 Special Investigations

(a) For the following types of incidents, if the Justice Center is not conducting an investigation, the mental health provider shall ensure that a special investigation is completed.

(1) Inpatient homicides;

(2) Inpatient suicides;

(3) All inpatient deaths except natural deaths;

(4) Homicide and suicide attempts by inpatients;

(5) Allegations of abuse;

(6) Inpatient assaults resulting in serious injury to any person, including sexual assaults;

(7) Missing patients of inpatient programs;

(8) Wrongful conduct.

(b) Special investigation reports shall be conducted in a manner consistent with Section 524.9 of this Part, and shall be submitted to the Office in a form and format designated by the Office.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.15 Employee code of conduct and training

(a) Directors of mental health providers are responsible for ensuring that each employee receives a copy of the Code of Conduct developed by the Justice Center pursuant to Section 554 of the Executive Law.

(1) Persons hired by the mental health provider on or after June 30, 2013 shall be provided with such Code upon initial hiring.

(2) Written confirmation of receipt of the Code of Conduct shall be obtained for each employee and maintained in his or her personnel file, upon initial distribution and at least annually thereafter. Such confirmation shall indicate that the employee has read and understands the Code provisions.

(3) Distribution of the Code can be manual or electronic, provided there is a reliable mechanism to confirm that the Code has been received, and signed, by each employee, which is easily accessible to monitor compliance with the provisions of this subdivision.

(b) Training.

(1) Directors of mental health providers shall ensure that all employees who are Mandated Reporters shall receive training in the following areas on at least an annual basis:

(i) abuse prevention, identification, reporting, and processing of allegations of abuse;

(ii) laws, regulations and policies/procedures governing protection from abuse; and

(iii) incident reporting and processing.

(2) Directors of mental health providers shall ensure that there is a mechanism for monitoring the type, frequency and amount of such training employees received, and that:

(i) the records are current; and

(ii) there is documentation establishing that employees have received the specified training.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.16 Penalties for violation

Upon a determination that a mental health provider is in violation of this Part, the Commissioner may impose a fine not to exceed $1,000 per day or $15,000 per violation in accordance with section 31.16 of the Mental Hygiene Law and Part 503 of this Title, and/or may suspend, revoke, or limit an operating certificate or take any other appropriate action, in accordance with applicable law and regulations.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

Part 526 QUALITY OF CARE AND TREATMENT

N.Y. Comp. Codes R. & Regs. Tit. 14 § 526.1 Background and intent

(a) The purpose of this Part is to set forth standards for the quality care and treatment of persons receiving services in facilities operated or licensed by the Office of Mental Health.

(b) Restraint and seclusion.

Included within this Part are conditions and procedures for restraint and seclusion utilized for the purpose of managing violent or self-destructive behavior, as well as the use of restraints for medical and post-surgical care.

(1) Consistent with its statutory mandates, among the goals of the Office of Mental Health for the provision of care to persons with mental illness are the assurance of a safe and therapeutic environment, the reduction of danger, and the prevention of violent behavior.

(2) Restraint and seclusion historically have been used in psychiatric facilities to manage episodes of violent or dangerous patient behavior. Statistically, these emergency interventions are associated with increased risk of injury to not only patients, but also to staff who utilize these interventions. Restraint and seclusion also may have deleterious effects on patients, including survivors of sexual trauma and/or physical abuse, and patients with hearing impairments who are unable to communicate without the use of their hands. Physical risks include serious injury or even death, and psychological injuries include re-traumatization for individuals with histories of abuse.

(3) The use of restraint and seclusion to manage violent or self-destructive behavior can be significantly reduced through the creation and maintenance of an environment which promotes the empowerment of patients, identifies and implements strategies to advance positive behavior management and restraint reduction efforts, is strength-based and trauma informed, incorporates strategies in hiring or workforce development practices to advance these efforts, and emphasizes the education and sensitization of staff regarding the appropriate use of restraint and seclusion.

(4) It is the policy of the Office of Mental Health to achieve an ongoing reduction in the use of restraint and seclusion in facilities operated, certified, or monitored by the office, with the goal of reducing restraint and seclusion to the status of rare events, to reduce the behavioral emergencies that have prompted their use, and, wherever possible, to entirely eliminate the use of restraint and seclusion.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 526.2 Legal base

(a) Section 7.07 of the Mental Hygiene Law charges the Office of Mental Health with the responsibility for assuring the development of comprehensive plans, programs, and services in the areas of research, prevention, and care, treatment, rehabilitation, education, and training of persons with mental illness. Such section further charges the office with the responsibility for seeing that persons with mental illness are provided with care and treatment, that such care and treatment is of high quality and effectiveness, and that the personal and civil rights of persons receiving care, treatment and rehabilitation are adequately protected.

(b) Section 7.09 of the Mental Hygiene Law grants 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 set standards of quality of care.

(c) Section 29.20 of the Mental Hygiene Law requires the Commissioner of the Office of Mental Health to promulgate regulations governing the maximum size of nasogastric feeding tubes for the purpose of protecting patients from undue discomfort.

(d) Section 31.19 of the Mental Hygiene Law provides that no individual who is or appears to be mentally disabled shall be detained, deprived of his/her liberty, or otherwise confined without lawful authority, or inadequately, unskillfully, cruelly, or unsafely cared for or supervised by any person.

(e) Section 33.03 of the Mental Hygiene Law authorizes the Commissioner of the Office of Mental Health to promulgate regulations governing the quality of care and treatment.

(f) Section 33.04 of the Mental Hygiene Law establishes requirements for the application of restraint in facilities under the jurisdiction of the Office of Mental Health.

(g) 42 CFR section 482.13(e) and (f) establish standards governing the use of restraint and seclusion in hospitals as a term and condition of participation in the Federal Medicaid program.

(h) 42 CFR sections 483.356, 483.358, 483.360, 483.362, 483.364, 483.366, 483.368, 483.370, 483.372, 483.374 and 483.376 establish standards governing the use of restraint and seclusion in psychiatric residential treatment facilities providing inpatient psychiatric services for individuals under age 21 as a term and condition of participation in the Federal Medicaid program.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 526.3 Applicability

The provisions of this Part apply to all programs operated or licensed by the Office of Mental Health.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 526.10 Inpatient nasogastric feeding procedures

(a) General.

Nasogastric tubes may be used for feeding purposes in inpatient facilities when determined to be clinically appropriate, following consideration of all possible routes and types of nutrition administration.

(b) Conditions for use.

(1) The use of nasogastric feeding tubes shall be ordered by a physician.

(2) In selecting the size and type of nasogastric feeding tubes to be employed, staff shall make every effort to minimize patient discomfort.

(3) Unless otherwise ordered and clinically justified by a physician, the size of a nasogastric feeding tube used on an individual patient shall not exceed:

(i) 6 French if the patient's body weight is less 50 pounds;

(ii) 8 French if the patient's body weight is 50 pounds or more, but less than 100 pounds;

(iii) 12 French if the patient's body weight is 100 pounds or more.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

Part 527 Rights Of Patients

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.1 Background and intent

(a) Applicability.

(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 of this Part 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. Only section 527.8(c)(5) of this Part shall apply to regional medical units operated by the Department of Corrections and Community Supervision at which the Office of Mental Health provides outpatient psychiatric treatment, and to correctional facilities operated by the Department of Corrections and Community Supervision at which the Office of Mental Health operates a residential crisis treatment program, except that section 527.8(c)(5) of this Part shall not be applicable under circumstances in which it is inconsistent with the Correction Law or Department of Corrections and Community Supervision regulations.

(2) Section 527.4 of this Part applies to all facilities which are operated or licensed by the Office of Mental Health. For family care home, the program sponsor shall be responsible for ensuring compliance with the regulations.

(3) Section 527.6 of this Part applies to all psychiatric hospitals operated by the Office of Mental Health, all residential treatment facilities for children and youth, all community residences, all residential care centers for adults, and all psychiatric hospital services required to have an operating certificate from the Office of Mental Health.

(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. Only section 527.8(c)(5) of this Part shall apply to the regional medical units operated by the Department of Corrections and Community Supervision at which the Office of Mental Health provides outpatient psychiatric treatment, and to correctional facilities operated by the Department of Corrections and Community Supervision at which the Office of Mental Health operates a residential crisis treatment program, except that section 527.8(c)(5) of this Part shall not be applicable under circumstances in which it is inconsistent with the Correction Law and Department of Corrections and Community Supervision regulations.

(c) This Part supersedes inconsistent provisions of Part 27 of this Title, as applied to services operated or subject to regulation by the Office of Mental Health. Those provisions of Part 27 which are not superseded by this Part remain in effect.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.2 Legal base

(a) Section 7.07 of the Mental Hygiene Law gives the Office of Mental Health responsibility for seeing that the personal and civil rights of persons with mental illness receiving care and treatment are adequately protected.

(b) Section 7.09 of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his jurisdiction. Such section also requires the 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.

(d) Article 31 of the Mental Hygiene Law authorizes the commissioner to visit and inspect all services for persons with mental illness 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 to issue regulations setting standards for licensed programs for the rendition of services for persons with mental illness.

(e) Section 33.02 of the Mental Hygiene Law establishes statutory rights of persons with mental disabilities 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.

(f) Section 33.05 of the Mental Hygiene Law provides that each patient or resident in a facility shall have the right to communicate freely and privately with persons outside the facility as frequently as he or she wishes, subject to regulations of the commissioner designed to assure the safety and welfare of patients and to avoid serious harassment to others.

(g) Section 401 of the Correction Law provides that the Office of Mental Health and the Department of Corrections and Community Supervision shall be jointly responsible for the administration and operation of programs for the care and treatment of inmates with mental illness who are in need of psychiatric services but who do not require hospitalization for the treatment of mental illness.

(h) 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 decisionmaking 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.

(i) 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.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.4 Communication needs

(a) No facility shall deny care and treatment to, or otherwise discriminate against, persons who are non-English-speaking, deaf or hard-of-hearing.

(b) Each facility shall facilitate access to services by persons who are non-English-speaking, deaf or hard-of-hearing. Such persons shall include:

(1) persons who seek or are referred to the facility's services; and

(2) persons who receive the facility's services.

(c) In addressing the communication needs of persons who are non-English-speaking, deaf or hard-of-hearing in accordance with subdivisions (a)-(b) of this section, each facility shall take reasonable steps to ensure that:

(1) the overall quality and level of services are equal to that made available to all other recipients;

(2) necessary steps are taken to provide information in appropriate languages;

(3) the timely availability of interpreters is provided, when necessary for effective communication;

(4) persons serving as interpreters are sufficiently competent to ensure effective communication. Such interpreters may include, but are not limited to, facility staff, community volunteers or contractors. In no event shall recipients be charged for the use of interpreter services;

(5) effective communication with non-English-speaking persons is provided in accordance with title VI of the Civil Rights Act of 1964 ( 42 USC 2000 d). Said law is published by the West Publishing Company, St. Paul, MN and is available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231, and the Office of Mental Health, Counsel's Office, 44 Holland Avenue, Albany, NY 12229; and

(6) effective communication with persons who are deaf or hard-of-hearing is provided in accordance with the Americans with Disabilities Act (Public Law 101-336). Said law is published by the West Publishing Company, St. Paul, MN and is available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231, and the Office of Mental Health, Counsel's Office, 44 Holland Avenue, Albany, NY 12229.

(d) A recipient's family member or significant other may serve as an interpreter for the recipient if the recipient and family member/significant other agree to the arrangement, the arrangement is clinically appropriate, and the recipient has been informed of the option of using an alternative interpreter identified by the facility. Providers shall not predicate service delivery on the use of family members or significant others as interpreters.

(e) Plans of treatment or services developed for persons who are non-English-speaking, deaf, hard-of-hearing, or are unable, for any reason, to read or write, shall identify any significant related impact on such persons' functioning and treatment, and identify associated recommendations for treatment, including any reasonable accommodations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.5 Notice of recipients' rights

(a) Definitions.

(1) Community-based residential program means a community residence, a licensed residential program for adults, a licensed housing program for children and adolescents, a residential care center for adults, or a family care home.

(2) Hospital means a psychiatric hospital operated by the Office of Mental Health, a psychiatric hospital, a psychiatric unit of a general hospital, a comprehensive psychiatric emergency program, or a residential treatment facility for children and youth.

(3) Practitioner means a person employed by or rendering a service in a community-based residential program or a hospital who is licensed in a profession relevant to the treatment of mental illness under article 131 of the Education Law, or is not prohibited by law from providing mental health services.

(b) Each person residing in a hospital or community-based residential program, unless otherwise indicated, has the right to:

(1) a safe and sanitary environment;

(2) a balanced and nutritious diet;

(3) appropriate personal clothing for residents of hospitals;

(4) practice religion;

(5) freedom from abuse and mistreatment by employees or other residents of the facility;

(6) adequate grooming and personal hygiene supplies for residents of hospitals;

(7) a reasonable amount of safe storage space for clothing and other personal property;

(8) a reasonable degree of privacy in sleeping, bathing and toileting areas;

(9) receive visitors at reasonable times, to authorize those family members and other adults who will be given priority to visit, to have privacy when visited, and to communicate freely with persons within or outside the facility;

(10) appropriate medical and dental care for residents of hospitals;

(11) an individualized plan of treatment or services and to participate in the development of that plan including the opportunity for a person, 16 years of age or older, to request a significant individual to himself or herself, including any relative, close friend or individual otherwise concerned with such person's welfare, to participate in the development of such plan, except that in comprehensive psychiatric emergency programs, the opportunity for participation by a significant individual shall be provided where practicable; and

(12) bring any questions or complaints, including complaints regarding any orders limiting such persons' rights, to the facility director, the Mental Hygiene Legal Service, the board of visitors if applicable, and the Commission on Quality of Care and Advocacy for Persons with Disabilities.

(c) The rights described in subdivision (b) of this section may not be limited as a punishment or for the convenience of staff. Any limitation on such rights shall be permitted only upon a written order, which is included in the person's clinical record, and which states the clinical justification for such limitation and the specific period of time such limitation shall remain in effect. For an individual residing in a hospital, such written order shall be by a physician. For an individual residing in a community-based residential program, such written order shall be by the facility director, upon receipt of a recommendation by the practitioner who has primary responsibility for the person or, if such practitioner is not available, a practitioner designated by the facility.

(d) Directors of hospitals shall ensure that a notice of the rights described in this section is posted in each ward or living area of such hospitals or, in comprehensive psychiatric emergency programs, in each waiting or treatment area of such programs.

(e) Directors of community-based residential programs shall ensure that a notice of the rights described in this section is provided to every person upon his or her admission to such facilities, upon limitation of any right, or at the individual's request.

(f) Notices provided pursuant to subdivisions (d) and (e) of this section shall include the address and telephone numbers of the office of the facility director, or such person's designee responsible for receiving questions or complaints, the board of visitors if applicable, the Mental Hygiene Legal Service, and the Commission on Quality of Care and Advocacy for Persons with Disabilities.

(g) In the event that other provisions of this Title include rights of recipients, in addition to those described in this section, which are required to be included in a written notice, a single, combined notice will be deemed to satisfy the requirements of this section.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.6 Health care agents and proxies

(a) Definitions.

(1) Adult means any person who is 18 years of age or older, or is the parent of a child, or has married.

(2) Capacity means the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.

(3) Health care means any treatment, service or procedure to diagnose or treat an individual's physical or mental condition.

(4) Health care agent means an adult to whom authority to make health care decisions is delegated under a health care proxy.

(5) Health care decision means any decision to consent or refuse to consent to health care.

(6) Health care proxy means a document delegating the authority to make health care decisions, executed in accordance with article 29-C of the Public Health Law.

(b) Procedural requirements.

(1) All competent adults have the right to appoint a health care agent to make health care decisions in the event they lose decision-making capacity. The facility shall ensure that all adult patients or residents are afforded this right as set forth in this Part and article 29-C of the Public Health Law. The facility' s responsibility for ensuring patients' or residents' right to appoint a health care agent includes providing patients or residents with a copy of these rights, providing assistance to patients or residents to understand and exercise these rights, and ensuring that health care proxies are created voluntarily.

(2) In order to ensure that patients or residents are made aware of, understand and can exercise their right to appoint a health care agent, each facility shall meet the following requirements:

(i) Each adult patient or resident shall be given a written explanation of his or her right to appoint a health care agent at the time of admission to the facility.

(ii) Each adult patient or resident previously admitted but not yet discharged from the facility upon the effective date of these regulations shall be given a written explanation of his or her right to appoint a health care agent.

(iii) A written explanation of patients' and residents' right to appoint a health care agent shall be posted in conspicuous areas in each facility.

(iv) Information shall be provided to all clinical staff to assure their knowledge and understanding of patients' and residents' right to appoint a health care agent.

(v) Each facility shall make available designated staff to answer questions regarding patients' and residents' right to appoint a health care agent, and to assist patients and residents in the creation of health care proxies. The availability of these services shall be described in the written notices required in subparagraphs (i)-(iii) of this paragraph.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.7 Advance directives

(a) Definitions.

(1) Adult means any person who is 18 years of age or older, or is the parent of a child, or has married.

(2) Advance directive means an individual's written instruction, recognized under New York State law, which relates to the provision of health care in the event that such individual lacks the capacity to make health care decisions.

(3) Health care means any treatment, service or procedure to diagnose or treat an individual's physical or mental condition.

(4) Health care decision means any decision to consent or refuse to consent to health care.

(b) Procedural requirements. Each facility which participates in the Medicare and/or medical assistance programs shall:

(1) establish and maintain written policies and procedures for implementing their obligations regarding patients' rights to make health care decisions. Such policies and procedures shall include, at the minimum, provisions for:

(i) documenting in each patient's clinical record whether or not the individual has executed an advance directive;

(ii) not conditioning the provision of care or otherwise discriminating against an individual based on whether or not the individual has executed an advance directive;

(iii) ensuring compliance with the requirements of New York State law related to advance directives; and

(iv) providing (individually or with others) for education of staff and the community on issues concerning advance directives;

(2) furnish the following to each adult patient upon his or her admission to such facility:

(i) written information about the policies and procedures described in paragraph (1) of this subdivision; and

(ii) written information about patients' rights under New York State law to accept or refuse medical treatment and to make advance directives; and

(3) furnish the information described in subparagraphs (2)(i)-(ii) of this subdivision to each adult patient previously admitted but not yet discharged from the facility upon the effective date of these regulations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.8 Care and treatment; right to object

(a) Definitions.

(1) Best interests means, with respect to any proposed treatment, that it will promote the well-being of a patient, taking into account the benefits, including improvement in the quality of the patient's life, risks and alternatives to the treatment.

(2) Capacity means the patient's ability to factually and rationally understand and appreciate the nature and consequences of proposed treatment, including the benefits, risks and alternatives to the proposed treatment, and to thereby make a reasoned decision about undergoing the proposed treatment.

(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.

(4) Dangerous means that a patient engages in conduct or is imminently likely to engage in conduct posing a risk of physical harm to himself or others.

(5) Minor means a patient who is under the age of 18 and is not married or the parent of a child, and is not on voluntary status on his or her own application. A patient under the age of 18 who does not meet the above criteria shall, for the purposes of this section, be considered an adult.

(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, 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.

(7) Treatment for purposes of this section means diagnostic procedures or therapeutic actions on behalf of a patient, including administration of psychotropic medications, extraction of bodily fluids for analysis (excluding routine blood work), dental care performed with a local anesthetic, biopsies, CAT/PET scans, or similar medical or dental procedures. For purposes of this section, such term also includes electroconvulsive therapy. Such term does not include, and this section does not apply to, routine medical procedures such as physical examinations, routine blood work, X-rays and nonpsychotropic medication. It also does not include, and does not apply to, procedures for which informed consent is required under section 27.9 of this Title, except electroconvulsive therapy, or under other provisions of law.

(8) Inmate patient means a person committed to the custody of the Department of Corrections and Community Supervision who is an outpatient of Central New York Psychiatric Center at the regional medical units operated by the Department of Corrections and Community Supervision at which the Office of Mental Health provides outpatient psychiatric treatment, and at correctional facilities operated by the Department of Corrections and Community Supervision at which the Office of Mental Health operates a residential crisis treatment program.

(b) Except as provided in this subdivision, facilities shall ensure that each patient is afforded an explanation of any proposed medical procedure or course of treatment. Such explanation shall include a discussion of the expected benefits, reasonably foreseeable risks, and any reasonable alternatives to the proposed procedure or treatment.

(1) A facility may withhold all or part of the explanation from any patient if the risk of treatment is minimal and too commonly known to warrant disclosure, or if in the judgment of the treating physician, providing such explanation would be likely to have an identifiable and substantial adverse effect upon the patient's condition. In any such case, the facility shall ensure that this determination is fully documented and that the patient is reevaluated monthly and provided appropriate explanation whenever the treating physician determines that an explanation would no longer be likely to have an identifiable and substantial adverse effect upon the patient's condition.

(2) A facility may withhold all or part of the explanation from any patient under the age 18, other than a patient admitted on his own application, who is not married or the parent of a child. In determining whether to withhold all or any part of the explanation, the facility shall consider the patient's age and maturity.

(c) Patients who object to any proposed medical treatment or procedure as defined above may not be treated over their objection except as follows:

(1) Emergency treatment. Facilities may give treatment, except electroconvulsive therapy, to any inpatient, regardless of admission status or objection, where the patient is presently dangerous and the proposed treatment is the most appropriate reasonably available means of reducing that dangerousness. Such treatment may continue only as long as necessary to prevent dangerous behavior.

(2) Minors.

(i) Except as provided in subparagraph (ii) of this paragraph, a patient who is a minor may be provided treatment over his or her objection if the patient's parent, legal guardian or other legally authorized representative has consented to the treatment, and the treatment is not one for which the consent of a minor would be legally sufficient.

(ii) If an individual, who is a minor and is a patient in a State-operated psychiatric center, objects to psychotropic medication to which his or her parent, legal guardian or other legally authorized representative has consented, such medication shall not be administered pending the completion of the following process, which shall be fully documented:

(a) Upon the patient's objection to the proposed treatment, an independent review shall be conducted by a physician who specializes in psychiatry and is not an employee of the facility. Such independent reviewer, designated by the clinical director, shall review the patient's clinical record, meet with the patient, and provide a recommendation to the clinical director based on an assessment of:

(1) the need for the proposed treatment in light of the patient' s current condition, the goals for the treatment, the patient's treatment history, any alternatives to the treatment and the therapeutic implications of treating the patient over his or her objection; and

(2) the patient's reasons for objecting to the proposed treatment, his or her ability to understand the factors described in subclause (1) of this clause, and the treatment staff's responses to the patient's objection.

(b) Following the completion of the independent review, the clinical director shall also conduct a review as described in clause (a) of this subparagraph. Based on the clinical director's review and the independent reviewer's recommendation, the clinical director shall determine that the treatment:

(1) be administered over the patient's objection; or

(2) be administered after the delay of a specified period of time to permit efforts to obtain the patient's agreement; or

(3) not be administered as not in the patient's best interests.

(c) The clinical director shall provide the patient and his or her parent, legal guardian or other legally authorized representative with a full explanation of the clinical director's determination. If the determination is made to administer non-emergency treatment over the patient's objection, the Mental Hygiene Legal Service shall be notified and the initiation of the treatment shall be delayed at least four calendar days thereafter. If, within the four-day period, the Mental Hygiene Legal Service files a legal action on behalf of the patient challenging the clinical director's determination as "arbitrary and capricious", the treatment may be initiated three calendar days thereafter, unless otherwise ordered by the court.

(3) Patients on voluntary or informal status. Except as provided in paragraphs (1) and (2) of this subdivision, patients who are on a voluntary or informal status, other than those for whom application to a court for involuntary retention has been made, may not be given treatment over their objection. When any such patient objects to all recommended forms of treatment, the facility director may, after notifying the patient, discharge the patient in accordance with a written service plan or, if appropriate, convert the patient to involuntary status. When a patient is discharged because of objection to all recommended forms of treatment, the director shall take appropriate steps to notify the patient' s family.

(4) Patients on involuntary status.

(i) Except in emergency circumstances as provided in paragraph (1) of this subdivision, or in cases involving minors in which consent for treatment is obtained in accordance with paragraph (2) of this subdivision, and except for cases involving major medical treatment, which are governed by section 27.9 of this Title, patients on involuntary status may not be given a medical procedure or course of treatment over their objection without court authorization.

(ii) Prior to requesting court authorization to treat an objecting patient on involuntary status, the clinical director of a facility or his or her designee must determine that treatment is in the patient's best interests and that the patient lacks capacity to make a reasoned decision concerning treatment. In making such determination, the facility shall ensure compliance with the procedures described below. In the interest of speedy resolution of conflicts regarding treatment, each of the evaluations of a patient described below should be completed within 24 hours.

(a) Evaluation by treating physician. Upon a patient's objection to the proposed treatment, the treating physician shall formally evaluate whether the treatment is in the patient's best interests, in light of all relevant circumstances including the risks, benefits and alternatives to the patient of the treatment, and the nature of the patient's objection thereto, and whether the patient has the capacity to make a reasoned decision concerning the treatment. If the physician finds that treatment is in the patient's best interests and the patient lacks capacity to make a reasoned decision concerning treatment, he shall personally inform the patient of his determination. If the patient continues to object to the proposed treatment, the physician shall forward his evaluation and findings to the clinical director with a request for further review. He shall also notify in writing the patient, MHLS, and any other representative of the patient of his determination and request, if any, for further review.

(b) Review by the clinical director or his designee.

(1) Upon receipt of the treating physician's request for further review, the clinical director shall appoint a physician to evaluate whether the proposed treatment is in the patient's best interests, and whether the patient has the capacity to make a reasoned decision concerning treatment. The reviewing physician may be any physician of suitable expertise relative to the proposed treatment and may be an employee of the facility, including the clinical director, or independent of the facility. In performing his evaluation, such physician shall review the patient's record and personally examine the patient. If the reviewing physician's determination is that treatment over objection is appropriate, he shall personally inform the patient of his determination.

(2) If there is a substantial discrepancy between the opinions of the treating physician and reviewing physician regarding the patient's capacity or whether treatment is in the patient's best interests, the clinical director may, at his option, appoint a third physician to conduct an evaluation pursuant to this subparagraph.

(3) If, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director shall make a determination on behalf of the facility whether the patient has capacity to make a reasoned decision concerning treatment and whether treatment is in the patient's best interests. If the clinical director finds that the patient has capacity to make a reasoned decision concerning treatment or that treatment would not be in the patient's best interests, he shall uphold the patient's objections and so notify the patient, MHLS, and any other patient representative. If the clinical director's determination is that the patient lacks capacity, and treatment over objection is in the patient's best interests, he may apply for court authorization of treatment, and so notify the patient, MHLS, and any other representative of the patient.

(5) Inmate patients.

(i) Except in emergency circumstances as provided in paragraph (1) of this subdivision, an inmate patient may not be given a psychotropic medication over his or her objection without court authorization.

(ii) Prior to requesting court authorization to administer psychotropic medication to an objecting inmate patient, the clinical director, or his or her designee, of Central New York Psychiatric Center, must determine that the administration of psychotropic medication is in the inmate patient's best interests and that the inmate patient lacks capacity to make a reasoned decision concerning administration of such medication. In making such determination, the clinical director, or his or her designee, shall ensure compliance with the procedures described below. In the interest of prompt resolution of conflicts regarding administration of psychotropic medication over objection, each of the evaluations of an inmate patient described below should be completed within 24 hours.

(a) Evaluation by treating physician. Upon an inmate patient's objection to the proposed administration of psychotropic medication, the treating physician shall formally evaluate whether the administration of psychotropic medication is in the inmate patient's best interests, in light of all relevant circumstances including the risks, benefits and alternatives to the inmate patient of the administration of psychotropic medication, and the nature of the inmate patient's objection thereto, and whether the inmate patient has the capacity to make a reasoned decision concerning the administration of such medication. If the physician finds that administration of psychotropic medication is in the inmate patient's best interests and the inmate patient lacks capacity to make a reasoned decision concerning administration of such medication, he or she shall personally inform the inmate patient of his or her determination. If the inmate patient continues to object to the proposed psychotropic medication, the physician shall forward his or her evaluation and findings to the clinical director with a request for further review. He or she shall also notify in writing the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient of his or her determination and request, if any, for further review.

(b) Review by the clinical director or his or her designee.

(1) Upon receipt of the treating physician's request for further review, the clinical director shall appoint a physician to evaluate whether the proposed administration of psychotropic medication is in the inmate patient's best interests, and whether the inmate patient has the capacity to make a reasoned decision concerning treatment. The reviewing physician may be any physician of suitable expertise relative to the proposed administration of psychotropic medication and may be an employee of the facility, including the clinical director, or independent of the facility. In performing his or her evaluation, such physician shall review the inmate patient's record and personally examine the inmate patient. If the reviewing physician's determination is administration of psychotropic medication over objection is appropriate, he or she shall personally inform the inmate patient of his determination.

(2) If there is a substantial discrepancy between the opinions of the treating physician and reviewing physician regarding the inmate patient's capacity or whether administration of psychotropic medication is in the inmate patient's best interests, the clinical director may, at his or her option, appoint a third physician to conduct an evaluation pursuant to this subparagraph.

(3) If, after completion of the evaluation by the reviewing physician (or physicians), the inmate patient continues to object to the proposed administration of psychotropic medication, the clinical director shall make a determination on behalf of the facility whether the inmate patient has capacity to make a reasoned decision concerning the administration of psychotropic medication and whether such medication is in the inmate patient's best interests. If the clinical director finds that the inmate patient has capacity to make a reasoned decision concerning the administration of psychotropic medication or that such medication would not be in the inmate patient's best interests, he or she shall uphold the inmate patient's objections and so notify the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient. If the clinical director's determination is that the inmate patient lacks capacity, and psychotropic medication over objection is in the inmate patient's best interests, he or she may apply for court authorization of administration of psychotropic medication, and so notify the inmate patient, Mental Hygiene Legal Service, and any other representative of the inmate patient.

(6) Nothing in this subdivision shall prevent a treating physician, treatment team, or others involved in the patient's or inmate patient's care from continuing to explain the proposed treatment to the patient as described in subdivision (a) of this section and to seek his or her voluntary agreement thereto. Further, the facility shall ensure that any such efforts are made in a clinically appropriate manner. A patient or inmate patient may at any time withdraw his or her objection to the proposed treatment, and the treating physician may at any time substitute another professionally acceptable course of treatment to which the patient or inmate patient does not object. Upon the withdrawal of the patient's or inmate patient's objection or his or her agreement to a substituted course of treatment, the physician shall immediately notify by telephone Mental Hygiene Legal Service and the patient's or inmate patient's attorney, if any. Unless the patient or inmate patient, Mental Hygiene Legal Service or the patient's or inmate patient's attorney renews the objection, treatment may be commenced 24 hours after notice has been provided. If the Mental Hygiene Legal Service or the patient's or inmate patient's attorney agrees, treatment may be commenced immediately. Notwithstanding a patient's or inmate patient's withdrawal of his or her objection to a proposed treatment, nothing in this paragraph shall diminish or supersede the need for obtaining informed consent for the proposed treatment when so required under section 27.9 of this Title or under other provisions of law.

(d) Notwithstanding the provisions of this Section, no facility shall provide services to minor patients that are intended to change such minor's sexual orientation or gender identity, including efforts to change behaviors, gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex, provided, however, that this does not include counseling or therapy for a minor who is seeking to undergo a gender transition or who is in the process of undergoing a gender transition, that provides acceptance, support, and understanding of minors or the facilitation of minors' coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, provided that the counseling or therapy does not seek to change sexual orientation or gender identity.

History

Amended New York State Register April 27, 2016/Volume XXXVIII, Issue 17, eff. 4/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.10 Visiting at facilities

(a) Subject to the provisions of section 527.12 of this Part, residents of facilities operated or licensed by the Office of Mental Health have a right to receive visitors at reasonable times, to have privacy when visited, to authorize those family members and other adults who will be given priority to visit, and to communicate freely with persons within or outside the facility.

(b) Visiting rights at facilities.

(1) Recognizing that, in general, having visitors and visiting outside of the facility is part of the recovery process which maintains ties with family and the rest of the community, all facilities shall establish visiting hours and policies which are designed to facilitate the exercise of the right to receive visitors. Such policies:

(i) must not be unduly onerous to residents;

(ii) must be as flexible as administratively feasible;

(iii) shall not require prior notification or request by either the resident or the visitor, except when such visits would interfere with the regularly scheduled therapeutic activities in which patients are engaged, or as provided in section 527.12 of this Part;

(iv) should, in order to preserve the therapeutic environment of the facility, be tailored in a manner that facilitates visiting while avoiding interference with the regularly scheduled activities in which residents are engaged, such as school attendance, program participation, and mealtime, by ensuring that in individual cases where an accommodation can be made without compromising the clinical care of the resident or other residents, facilities shall make reasonable efforts to do so;

(v) shall require the establishment of regular visiting hours during every day and every evening of the week, provided, however, that facilities operated by the office shall establish regular visiting hours based on the facility's security needs and the needs of the specific population served (i.e., adults, children, or persons residing in forensic or secure treatment facilities), their families, and the community, as well as all other requirements of this subdivision; and

(vi) with respect to facilities which serve minors 18 years of age or under, may require prior authorization of visitors by the person or entity with legal authority to consent to treatment for such minor, if in the best clinical interests of the resident.

(2) Each facility shall establish a space where visitors may meet with residents in comfortable surroundings with a reasonable degree of privacy. Visitors should be encouraged to visit in the living, dining, and recreational areas with patients, as well as to visit outside the facility with the resident.

(3) In exceptional instances, it may be necessary to restrict a resident's visiting right. Such restriction can only be imposed in accordance with section 527.12 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.11 Communicating freely with others within and outside the facility

(a) Residents of facilities or programs operated or licensed by the Office of Mental Health have the right to communicate freely and privately with persons within and outside the facility, subject to the provisions of section 527.12 of this Part.

(b) To assist in the exercise of this right, facilities shall provide residents with reasonable access to stationery and telephones to assist them in freely communicating with others outside the facility.

(c) Residents shall have full opportunity to communicate freely with clergy and with their legal representatives, and these communications shall not be restricted. With respect to other correspondence, there shall be no censorship or restriction of incoming or outgoing letters or packages, except in the following circumstances:

(1) To assure the safety and welfare of residents, facilities subject to this Part may institute policies governing possession of contraband. Letters or packages which are reasonably suspected to contain contraband or, in the case of facilities operated by the office, otherwise implicate significant security or safety concerns, shall be processed in accordance with such facility policies.

(2) To assure the safety and welfare of residents and avoid harassment to others, any resident whose condition, in the opinion of the treatment team, warrants some selectivity, may have incoming and/or outgoing letters or packages not subject to a facility's contraband policy censored or restricted in accordance with section 527.12 of this Part.

(d) With the exception of mail that is processed or restricted in accordance with subdivision (c) of this section, incoming letters and packages should be delivered sealed and unopened to all residents, and all outgoing letters and packages shall be mailed in a like manner, provided, however, in an individual case where there exists an unanticipated, overriding compelling safety or security concern, the reasons why the letter or package was not delivered sealed or unopened to the resident, and a description of how the matter was handled (e.g., in consultation with the United States Postal Service, or other appropriate security intervention) should be appropriately documented in accordance with facility procedure.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 527.12 Restriction of rights

(a) A right set forth in article 33 of the Mental Hygiene Law and this Part may be restricted within the resident's treatment plan by a written order signed by a physician stating the clinical justification for the restriction. The order imposing the restriction and a notation detailing the clinical justification therefor and the specific period of time in which the restriction shall be in effect must be entered into the resident's record. In no event may any right set forth in this section be restricted or limited as a punishment or for the convenience of staff.

(b) Any restriction on a right identified in this section shall be the least restrictive appropriate method for protecting the interest or interests involved.

(c) The treatment team or its designee shall discuss any restrictions of a right set forth in this section and the reason for such decision with the resident, and his or her family (if the resident does not object), and/or other authorized representative of the resident, and shall advise such persons of the resident's right to appeal this decision to the director of the facility. A notation that such persons were advised of the restriction, and the resident's right to appeal the decision, must be entered in the resident's record.

(d) In cases where a restriction is placed on incoming and/or outgoing mail in accordance with section 527.11(c)(2) of this Part, such mail may be withheld from the resident during the time the restriction is in place, or may be opened by a member of the treatment team in the presence of the resident. In no case may a staff member other than a member of the treatment team open such packages or letters, unless there exists an overriding compelling safety or security concern. In such cases, the reason why a treatment team member did not open a package or document, and a description of how the matter was handled (e.g., in consultation with the United States Postal Service, or other appropriate security intervention) must be appropriately documented in accordance with facility procedure.

(e) Appeals. Residents whose rights have been restricted in accordance with this section shall be notified of their right to appeal such decision in accordance with section 27.8 of this Title.

Part 530 VITAL ACCESS PROGRAM AND PROVIDERS

N.Y. Comp. Codes R. & Regs. Tit. 14 § 530.1 Background and Intent

The purpose of this Part is to provide a means to support the stability and geographic distribution of mental health clinic services throughout all geographic and economic regions of the State. A designation of Vital Access Provider denotes the Commissioner's determination to ensure patient access to a provider's essential services otherwise jeopardized by the provider's payer mix or geographic isolation.

History

Adopted, New York State Register January 28, 2015/Volume XXXVII, Issue 04, eff. 1/28/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 530.2 Legal Base

(a) Section 7.09 of the Mental Hygiene Law authorizes the Commissioner to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(b) Section 31.02 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for the provision of inpatient and outpatient mental health services.

(c) Section 43.02 of the Mental Hygiene Law authorizes the Office to establish rates or methods of payment for services at facilities subject to licensure or certification by the Office.

(d) Chapter 53 of the Laws of 2014 authorizes the Commissioner to provide special funding to certain designated providers.

History

Adopted, New York State Register January 28, 2015/Volume XXXVII, Issue 04, eff. 1/28/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 530.3 Definitions

(a) Vital Access Program ("VAP") means a program of supplemental funding and/or temporary rate or fee adjustments available to providers of mental health services that are determined by the Commissioner to be essential to the availability of mental health services in a geographic or economic region of the State but in financial jeopardy due to their payer mix or geographic isolation.

(b) Vital Access Provider means a provider of mental health clinic services that is licensed under Article 31 of the Mental Hygiene Law and that is designated by the Commissioner as eligible for participation in the Vital Access Program. It does not include a provider that is licensed under Article 28 of the Public Health Law.

History

Adopted, New York State Register January 28, 2015/Volume XXXVII, Issue 04, eff. 1/28/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 530.4 Vital Access Program

(a) The Commissioner may accept applications from licensed providers of mental health clinic services requesting designation as a Vital Access Provider eligible to receive supplemental funding or a temporary rate adjustment. The Commissioner may give priority to providers serving regions or populations in the State that he or she shall determine are in special need of services. Such applications must sufficiently demonstrate that:

(1) The provider is essential to maintaining access to the mental health services it is authorized to provide to individuals with mental illness who reside in the geographic or economic region of the State served by the provider;

(2) The provider is in financial jeopardy due to payer mix or geographic isolation;

(3) The additional resources provided by supplemental funding or a rate or fee adjustment will achieve one or more of the following:

(i) protect or enhance access to care;

(ii) protect or enhance quality of care;

(iii) improve the cost effectiveness of the delivery of health care services; or

(iv) otherwise protect or enhance the health care delivery system, as determined by the Commissioner.

(b) Application.

(1) The written application required pursuant to subdivision (a) of this Section shall be submitted to the Commissioner at least sixty (60) days prior to the requested effective date of the designation as a Vital Access Provider and shall include a proposed budget to achieve the goals identified in the application.

(2) The Commissioner may require that applications submitted pursuant to this Section be submitted in response to, and in accordance with, a Request For Applications or a Request For Proposals issued by the Office.

(c) Reimbursement. A provider that is designated as a Vital Access Provider shall be eligible to receive supplemental funding or a temporary rate or fee adjustment. (d) Conditions on Approval.

(1) Any temporary rate adjustment issued pursuant to this section shall be in effect for a specified period of time of no more than three years, as determined by the Commissioner, based upon review and approval of a specific plan of action to achieve one or more of the goals set forth in subdivision (a) of this section. At the end of the specified timeframe, the provider shall be reimbursed in accordance with the otherwise applicable rate-setting methodology or fee schedule pertaining to such provider.

(2) The Commissioner may establish, as a condition of designation as a Vital Access Provider, benchmarks, goals and standards to be achieved, and may require such periodic reports as he or she shall determine to be necessary to ensure their achievement. A determination by the Commissioner of a failure to demonstrate satisfactory progress in achieving such benchmarks, goals and standards shall be a basis for revoking the provider's designation as a Vital Access Provider, and terminating the supplemental funding or temporary rate or fee adjustment prior to the end of the specified timeframe.

(3) No portion of the funds received pursuant to this Part shall be used for the payment of any prior debt or obligation incurred by the designated provider, or for any purpose not related to the purposes set forth in this Part.

History

Adopted, New York State Register January 28, 2015/Volume XXXVII, Issue 04, eff. 1/28/2015

Part 540 Patients Committed To The Custody Of The Commissioner Pursuant To Cpl Article 730

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.1 Statement of purpose

(a) The Office of Mental Health has a multifaceted responsibility in caring for patients committed to its custody by a criminal court after having been found to have a mental disease or defect which renders them incapable of understanding the criminal proceedings against them or assisting in their own defense. It must maintain custody of patients against whom criminal charges are pending; it must respect society's expectation that patients for whom criminal charges have been dismissed but who have demonstrated their propensity for violence will not be inappropriately released; it must respect the civil rights of patients who are not subject to criminal charges; and it must help patients make the therapeutic progress that will make continued hospitalization unnecessary and enable them to either face their accusers or be released.

(b) While criminal defendants are committed to the custody of the commissioner under court orders which vary in the degree to which they subject the patient to the continuing jurisdiction of the criminal court, many such patients have one thing in common. They have been accused of an act of violence. Research studies have demonstrated that one reliable indicator of future violent criminal behavior is past acts of criminal violence. A history of treatment for mental illness, in and of itself, has not been demonstrated to be related to violent behavior.

(c) While the office does not intend to hold patients accountable for crimes of which they have not been convicted, it believes that commitment to the custody of the commissioner pursuant to a criminal court order after having been accused of an act of violence is sufficient indication of a violent propensity to justify the precaution of confirming the clinical judgment of the patient's treatment team prior to releasing the patient or granting him furloughs. The office is therefore establishing regulations which require each of its facilities to establish a mechanism to ensure clinical review of criminal order patients to determine whether or not release, change of status or granting of a furlough is appropriate, thereby assuring that violent patients will not be inappropriately freed from custody.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.2 Definitions

(a) Application means an application to the hospital forensic committee or clinical director.

(b) Certified psychologist means a person who has been certified and registered to practice psychology in New York State pursuant to the education law.

(c) Clinical director means the person in charge of clinical services at the facility where the patient is receiving care and treatment. In facilities in which the director is a physician, this term refers to the director. If the director of the facility is not a physician, this term refers to the deputy director for clinical services.

(d) Commissioner means the New York State Commissioner of Mental Health.

(e) Conditional release means the act of ending a facility's inpatient period of service to a patient without ending the facility's legal responsibility for the patient.

(f) Court means the court which issued the order under article 730 of the Criminal Procedure Law by which the patient was committed to the facility in which he or she is presently receiving care and treatment.

(g) Day means all days of the week excluding Saturdays, Sundays and holidays.

(h) Discharge means the act of ending a facility's inpatient period of service to a patient and the facility's legal responsibility for that patient.

(i) Escorted furlough means any occasion on which a patient leaves the confines of the facility where he or she is receiving care and treatment, except for the receipt of medical care, appearance in court, or attendance at the funeral of an immediate family member, and during which he or she is under the constant supervision of one or more employees of the appropriate office facility.

(j) Final order of observation means an order entered by a local criminal court pursuant to section 730.40 (1) and (2) of the Criminal Procedure Law or by a superior court pursuant to section 730.50 (1) of the Criminal Procedure Law which commits a criminal defendant found to be an "incapacitated person" to the custody of the commissioner for a period of up to 90 days and simultaneously dismisses the criminal charges against the defendant.

(k) Hospital forensic committee or committee means a committee established in accordance with section 540.3 of this Part.

(l) Incapacitated person means a criminal defendant found by the court, as a result of mental disease or defect, to lack capacity to understand the proceedings against him or her or to assist in his or her own defense.

(m) Office facility means any inpatient hospital within the Office of Mental Health.

(n) Order of commitment means an order issued by a superior court pursuant to section 730.50 (1) of the Criminal Procedure Law which commits a criminal defendant accused of a felony, and found to be an "incapacitated person," to the custody of the commissioner for a period of up to one year, but which does not result in dismissal of the criminal charges against the defendant.

(o) Order of retention means an order issued by a superior court pursuant to section 730.50 (2) or (3) of the Criminal Procedure Law at the expiration of an order of commitment or a prior order of retention which retains a criminal defendant in the continued custody of the commissioner for a period not to exceed one or two years without dismissing the criminal charges against the defendant.

(p) Patient means any inpatient committed to an office facility by a court order issued pursuant to article 730 of the Criminal Procedure Law, or whose present status as an inpatient is the result of his or her continued retention as a civil patient after the expiration of such court order. For purposes of this Part, the term patient shall not include persons remanded to the custody of an office facility pursuant to a final order of observation, as defined in subdivision (i) of this section, or who are admitted to an office facility immediately following a remand pursuant to such order.

(q) Psychiatric examiner means a qualified psychiatrist or a certified psychologist who has been designated by a director to examine a defendant pursuant to an order of examination. In facilities in which the director is not a physician, the director may delegate this authority to the deputy director for clinical services.

(r) Qualified psychiatrist means a physician who:

(i) is a diplomate of the American Board of Psychiatry and Neurology or is eligible to be certified by that board; or

(ii) is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board.

(s) Temporary order of observation means an order issued by a local criminal court pursuant to Criminal Procedure Law, section 730.40(1) and (2), which applies to a criminal defendant accused but not indicted of a felony offense and found by the court to be an "incapacitated person" and commits him or her to the custody of the commissioner for a period of up to 90 days, but which does not automatically result in dismissal of the criminal charges against the defendant.

(t) Transfer means the transfer of a patient from a secure facility to a nonsecure facility.

(u) Unescorted furlough means any occasion on which a patient leaves the confines of the building where he or she is receiving care and treatment and during which such leaving is with permission of the facility and without the constant supervision of one or more employees of the facility.

(v) Unit chief means the administrator in charge of the unit where the defendant is receiving care and treatment.

History

Amended New York State Register May 20, 2015/Volume XXXVII, Issue 20, eff. 5/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.3 Hospital forensic committee

(a) Each office facility shall establish a hospital forensic committee consisting of three persons appointed by the clinical director.

(b) Each member of the committee shall be a clinician licensed in New York State to practice medicine, psychology or social work.

(d) The committee shall review applications for authorization of the granting of escorted or unescorted furlough to patients, transfer of patients, conversion of patients to civil status, and discharge or conditional release of patients, or return of patients to the custody of the criminal court, in accordance with the procedures described in section 540.9(h) of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.4 Escorted furlough

(a) Escorted furlough may not be granted to a person who is subject to a temporary order of observation or an order of commitment.

(b) Escorted furlough may be granted by the clinical director to a patient who is currently subject to an order of retention, after consultation with the hospital forensic committee as required by section 540.9 of this Part, and notice in compliance with the procedures described in section 540.10 of this Part.

(c) Escorted furlough may be granted by the clinical director to a patient retained as a civil patient after the expiration of an order issued under article 730 of the Criminal Procedure Law, after consultation with the hospital forensic committee as required in section 540.9 of this Part and compliance with the notice requirements described in section 540.10 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.5 Unescorted furlough

(a) Unescorted furlough may not be granted to any patient who is currently subject to a temporary order of observation, an order of commitment or an order of retention.

(b) Unescorted furlough may be granted by the clinical director to a patient retained as a civil patient after the expiration of an order issued under article 730 of the Criminal Procedure Law, after consultation with the hospital forensic committee as required in section 540.9 of this Part and compliance with the notice requirements described in section 540.10 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.6 Placement or transfer of patients

(a) Orders remanding persons to the custody of the Commissioner.

(1) Designation of a secure facility. In cases where a person is to be remanded to the commissioner pursuant to a final order of observation, as defined in section 540.2(i) of this Part, the commissioner may designate a secure facility to receive such person in cases where the person has:

(i) open felony charges or warrants or a pending parole revocation hearing; or

(ii) a history of arrests for violent crimes or threats to commit violent crimes against persons or a history that includes escape or attempted escape from a psychiatric facility, and, based upon a review of available information, the commissioner believes such person would likely meet the secure retention standards in paragraph (4) of this subdivision.

(2) Designated secure facility procedure. Within 72 hours of receiving a person from a criminal court who appears to meet any of the criteria identified in paragraph (1) of this subdivision, the designated secure facility will:

(i) evaluate the person to confirm that he or she does meet such criteria; and

(ii) determine:

(a) if the person has a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare;

(b) if the person's judgment is so impaired that he is unable to understand the need for such care and treatment; and

(iii) give notice that this patient is now a civil patient and no further notice, pursuant to section 730.60 (6) of the Criminal Procedure Law and section 29.11 (h) of the Mental Hygiene Law, shall be given of transfer to a non-secure facility or release, unless such notice is in compliance with the provisions of section 33.13 of the Mental Hygiene Law. Such notice shall be given to:

(a) the district attorney of the county from which the patient was committed;

(b) the superintendent of State Police;

(d) the police department having jurisdiction of the area where the facility is located;

(e) any person who may reasonably be expected to be the victim of any assault or any violent felony, as defined in the Penal Law, which would be carried out by the committed person;

(f) the Mental Hygiene Legal Service or other attorney representing the patient, if any; and

(g) any person or entity the court that committed the patient to the custody of the commissioner may have designated in the order issued under article 730 of the Criminal Procedure Law.

(3) Notice. Within 24 hours of confirming the need to admit the patient to the secure facility, the director of such facility shall provide notice of the commissioner's determination that the patient needs secure placement and of the patient's right to object to placement at such secure facility to: the patient, the nearest relative of the patient, if there be any known to him, and to the Mental Hygiene Legal Service or other legal representative.

(4) Hospital forensic committee review. Within 30 days of the patient's placement in a designated secure facility pursuant to subparagraph (1)(ii) of this subdivision, the facility's hospital forensic committee shall review the patient's placement in that facility to confirm that there is a substantial risk that such patient may cause physical harm to other persons, as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious harm and therefore the patient needs the close supervision provided by a secure facility.

(5) Objection. If the patient has been placed in a secure facility pursuant to subpapragraph (1)(ii) of this subdivision, such patient, or anyone on his/her behalf may file a written objection to the placement with the director of the facility after the 30-day review period has elapsed and a decision to retain the patient at the secure facility has been made. The patient or his/her representative may support the objection by filing with the director, within 10 days, exclusive of Saturdays, Sundays and holidays, of the 30-day or periodic review done pursuant to paragraph (4) or (7) of this subdivision, appropriate written arguments supported by documents, statements, and affidavits. The director shall send the notice of objection and any material submitted by the patient or the person filing an objection on the patient's behalf to the commissioner or his/her designee. The director may also send to the commissioner or his/her designee written arguments supported by documents, statements, and affidavits in support of his/her decision to admit the patient to a secure facility, provided that a copy of such material be provided to the patient and his/her representative(s).

(6) Determination.

(i) If no objection is received to the notice of determination for placement in a secure facility, the director shall so notify the commissioner or his/her designee.

(ii) If objection has been filed, the commissioner or his/her designee shall designate a qualified psychiatrist or licensed psychologist not on the staff of the secure facility to which the patient has been admitted, who shall assist him/her in evaluating the secure placement. The qualified psychiatrist or licensed psychologist shall personally visit the hospital and shall interview the patient, the patient's physician, the director, and others as he/she deems necessary and shall make a report and recommendation to the commissioner or his/her designee.

(iii) A copy of such report shall be sent to the persons served with notice of the determination for placement in a secure facility. The commissioner or his/her designee shall give due consideration to the arguments and supporting material presented by the respective parties as well as the report of the designated qualified psychiatrist or licensed psychologist, and shall decide the matter, upholding or reversing such secure placement.

(iv) If the decision is to confirm the need for placement in a secure facility, the determination shall be upheld. The decision of the commissioner or his/her designee shall be communicated to the director, the patient and the patient's representative(s).

(7) Review of patient's condition.

(i) A patient placed in a designated secure facility from a criminal court pursuant to a final order of observation shall be retained at such hospital only as long as his/her condition requires placement at such hospital in accordance with the criteria set forth in subparagraph (1)(ii) and subparagraphs (2)(i) and (ii) of this subdivision, and if there is a substantial risk that such patient may cause physical harm to other persons, as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious harm and therefore the patient needs the close supervision provided by a secure facility.

(ii) Unless the patient has been discharged or transferred, the director of a designated secure facility who has received a patient in accordance with this subdivision shall comply with the provisions of article 9 of the Mental Hygiene Law and shall apply, in accordance with such article, for the required periodic orders authorizing retention of involuntary patients. In addition, such director shall periodically review the need for retention in the designated secure facility of each involuntary patient and shall file a report with the commissioner or his/her designee for each such patient at intervals of not more than six months setting forth reasons why the patient needs continued retention at such facility. A copy of such report shall be served on the patient and the Mental Hygiene Legal Service or the legal representative of the patient. The patient or his/her legal representative may file an objection in accordance with paragraph (5) of this subdivision.

(iii) Involuntary patients who no longer need placement in the designated secure facility but who still require involuntary care and treatment shall be transferred to another hospital in the Office of Mental Health in accordance with subdivision (b) of this section.

(b) Transfers from a secure facility to a non-secure facility. Patients who are in the custody of the commissioner may be transferred from a secure facility to a nonsecure facility by order of the commissioner or his/her designee.

(c) Nothing in this section shall be construed to limit the right of any person to seek transfer or release pursuant to section 33.15 of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.7 Conversion to civil status

A patient detained pursuant to an expired temporary order of observation, order of commitment or order of retention may be converted to civil status by the clinical director after consultation with the hospital forensic committee as required in section 540.9 of this Part and compliance with the notice requirements and procedures described in section 540.10 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.8 Discharge or conditional release; fitness to stand trial and return of patients to the custody of the criminal court

(a) No patient who is in the custody of the commissioner pursuant to a temporary order of observation, an order of commitment or an order of retention shall be discharged or conditionally released without court authorization.

(b) The clinical director may apply to the court for the return of a patient who is in the custody of the commissioner pursuant to a temporary order of observation, an order of commitment or an order of retention to the custody of the criminal court upon a finding that he is not an incapacitated person after consultation with the hospital forensic committee in accordance with the procedures described in section 540.9 of this Part, or after review and consideration of the report and recommendations of a psychiatric examiner designated in accordance with the procedures described in subdivision (c) of this section.

(c) The clinical director shall have responsibility for deciding whether the patient remains an incapacitated person or is fit to stand trial.

(1) In exercising this responsibility, the clinical director may designate a psychiatric examiner who is employed at the facility to examine the patient. The psychiatric examiner so designated shall prepare a report in which he or she makes a recommendation to the clinical director.

(2) The clinical director shall review and consider the recommendations of the designated psychiatric examiner in making a determination of whether the patient remains an incapacitated person or is fit to stand trial. The clinical director is not required to follow such recommendations.

(d) Persons who are in the custody of the commissioner pursuant to a final order of observation, or after having been converted to civil status, may be discharged or conditionally released by the clinical director, after consultation with the hospital forensic committee as required in section 540.9 of this Part and compliance with the requirements of section 540.10 of this Part.

History

Amended New York State Register May 20, 2015/Volume XXXVII, Issue 20, eff. 5/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.9 Hospital forensic committee procedures; clinical director

(a) A patient who wishes to be discharged or conditionally released, converted to civil status, transferred to a less secure facility or granted escorted or unescorted furlough privileges or his or her legal representative may request his treatment team to make an appropriate application to the hospital forensic committee.

(b) When the treatment team serving a patient is of the opinion that such patient is appropriate for escorted furlough, unescorted furlough, transfer, discharge, conditional release or conversion to civil status, it shall recommend to the unit chief that an application be made to the hospital forensic committee and the clinical director. When the treatment team serving a patient is of the opinion that such patient is appropriate for return to the custody of the criminal court, it shall recommend to the unit chief that an application be made to the hospital forensic committee or to the clinical director, if he or she has designated a psychiatric examiner in accordance with procedures described in section 540.8(c) of this Part. The treatment team may act on its own initiative or at the patient's request.

(c) If the unit chief, after review of the case, agrees with the opinion of the treatment team, he or she and the team psychiatrist shall execute an application. Upon completion of the application, the unit chief shall forward it to the hospital forensic committee or to the clinical director, if he or she has designated a psychiatric examiner in accordance with the procedures described in section 540.8(c) of this Part.

(d) The committee shall meet to discuss the application within seven days of its receipt of the application from the unit chief. The committee shall notify the patient, the patient's attorney, and the Mental Hygiene Legal Service of its meeting at least three days prior to the meeting. Proof of service of such notice shall be placed in the patient's record. The patient, the Mental Hygiene Legal Service or an attorney or representative of his or her choice may attend the meeting.

(e) The committee shall review all information pertaining to the patient and, if necessary, conduct a joint examination of the patient. Within seven days of its meeting to discuss the application, the committee shall make a written recommendation to the clinical director regarding the merits of the application. Such recommendation need not be unanimous. If one member of the committee disagrees, he or she shall so notify the clinical director, in writing.

(f) If the application on behalf of the patient is for conversion of the patient to civil status, the committee shall consider whether the patient is mentally ill, in need of care and treatment in a hospital, lacks the judgment necessary to understand such need, and would either be unable to live outside the hospital with the help of family or friends or would pose a danger to himself or herself or others. If the patient meets such criteria, the committee shall recommend to the clinical director that the patient be involuntarily civilly committed. If the patient does not meet those criteria but is suitable for continued hospitalization, the committee shall recommend to the clinical director that the patient be converted to voluntary civil status. If the patient should not be hospitalized, the committee shall so recommend to the clinical director.

(g) If an application is made seeking the discharge or conditional release of a patient against whom criminal charges are not pending, the committee shall consider whether the patient suffers a mental illness and requires inpatient care and treatment in a hospital, lacks the judgment to understand his or her need for such treatment and would either be unable to live outside the hospital with the help of family or friends or would pose a danger to himself or herself or other persons if released. If the patient meets each of the above criteria, the committee shall recommend that the patient continue in the custody of the commissioner as an involuntary civil patient. If the committee believes that the patient does not meet such criteria, it shall recommend that the patient be released.

(h) If an application is made to the committee in accordance with the procedures described in section 540.8(b) of this Part, for a determination of fitness to stand trial and return to court of a patient against whom criminal changes remain pending, the committee shall consider whether the patient suffers a mental illness which renders him or her incapable of understanding the charges against him and assisting in his or her own defense.

(i) If an application is made for the granting of escorted or unescorted furlough, the committee may recommend that such furlough privileges be granted if it finds that they would be clinically beneficial to the patient and that, in its opinion, the patient may be granted furlough privileges without endangering another person or persons outside the facility. If the committee recommends that escorted or unescorted furlough be granted, it shall also recommend the duration of each exercise of those furlough privileges and the period of time for which the granting of furlough privileges should remain outstanding. If an application is made to grant a patient escorted or unescorted furlough privileges and the committee is of the opinion that the patient would pose an immediate danger to another person or persons if allowed outside the facility, or that the patient is otherwise not suited for such furlough, it shall recommend that the furlough be denied.

(j) If an application is made to transfer the patient to a less secure facility, the committee shall consider whether such transfer would be in the best interest of the patient and whether the patient's behavior is such that the transfer would jeopardize the safety of the patient, other patients or staff at a less secure facility. If the committee is of the opinion that such transfer could jeopardize the safety of the patient or any other person, or would render an escape attempt likely, it shall recommend against transfer.

(k)

(1) The clinical director shall have responsibility for deciding whether to grant an application for the conversion to civil status, granting of furlough, discharge, or conditional release of a patient. In exercising such responsibility, he or shall review the recommendations of the hospital forensic committee. The clinical director need not follow such recommendations, but shall not take action contrary to the recommendation of a majority of the committee without first consulting with a clinician who is not employed at the facility.

(2) The clinical director shall have responsibility for deciding whether to grant an application for a return to court of a patient who is no longer an incapacitated person but against whom criminal charges remain pending. In exercising such responsibility, he or she shall:

(i) review the recommendation of the hospital forensic committee if consultation is requested in accordance with section 540.8(b) of this Part. The clinical director is not required to follow such recommendations, but shall not take action contrary to the recommendation of a majority of the committee without first consulting with a clinician who is not employed at the facility; or

(ii) review the report and recommendations of the psychiatric examiner that he or she has designated in accordance with the procedures described in section 540.8(c) of this Part. The clinical director is not required to follow such recommendations.

(l) If the clinical director decides to grant a patient escorted or unescorted furlough, he or she shall specify the allowable duration of each exercise of those furlough privileges and the period of time for which furlough privileges may be granted.

(m) In the event the patient's treatment team becomes aware of a change in the patient's condition that would warrant discontinuation of escorted or unescorted furlough, the treatment team leader shall so notify the unit chief, who shall notify the clinical director, who may revoke the grant of such furlough privileges to the patient. The unit chief or the physician treating the patient may immediately suspend a patient's furlough privileges in the event of an emergency.

(n) If the clinical director decides to grant the patient's application, he or she shall follow the notice requirements described in section 540.10 of this Part, if applicable.

(o) The clinical director need not comply with the notice requirements and procedures described in section 540.10 of this Part if a hearing is held at the time a patient is converted to civil status or at any other time after commitment and a court issues an order authorizing transfer, discharge, conditional release, or the granting of escorted or unescorted privileges at the discretion of the facility.

History

Amended New York State Register May 20, 2015/Volume XXXVII, Issue 20, eff. 5/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.10 Notice requirements

(a) If the clinical director decides to grant an application to convert a patient to civil status, to grant a patient escorted or unescorted privileges, transfer a patient to a less secure facility, or to discharge or conditionally release a patient, he or she shall, at least four days, excluding Saturdays, Sundays and holidays, in advance of such action, deliver written notice to all of the following:

(1) the district attorney of the county from which the patient was committed;

(2) the superintendent of State Police (for locations other than New York City);

(3) the sheriff of the county where the facility is located (for locations other than New York City);

(4) the police department having jurisdiction of the area in which the facility is located;

(5) any person who may reasonably be expected to be assaulted or otherwise harmed by the patient (if this notice appears necessary, a mentally ill patient should not be released or given escorted or unescorted privileges);

(6) the patient's attorney, if any;

(7) the patient's nearest relative; and

(8) any person or entity the court that committed the patient to the custody of the commissioner may have designated in the order issued under article 730 of the Criminal Procedure Law. Written notice may be given by mail, in which case an additional three days, for a total of seven days notice, shall be given to allow time for delivery. Alternatively, notice may be given by telegram or mailgram, in which case an additional day, for a total of five days notice, shall be given to allow time for delivery.

(b) If, at the end of the notice period the facility does not receive a court order enjoining it from taking the action of which it has given notice, it may take that action.

(c) If, prior to taking the action that was the subject of notice given in accordance with this section, the facility receives an order of a superior court enjoining it from taking such action, it shall comply with such order. The clinical director, a member of the hospital forensic committee, or the physician treating the patient shall present any evidence that may be required to substantiate the reasons for the action proposed by the facility at any hearings the court may hold following issuance of the order. If a hearing is not held within 10 days of receipt of an order enjoining the facility's actions, the clinical director shall notify the local office of the Attorney General. The facility shall comply with any court orders issued following a hearing. The facility may apply to the court at any time for reconsideration of any order issued following a hearing.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 540.11 Escape

(a) In the event a patient leaves the grounds of the facility without prior authorization, the clinical director, the unit chief, the patient's physician, the patient's treatment team leader or any other member of the clinical staff shall immediately notify:

(1) the district attorney of the county from which the patient was committed;

(2) the superintendent of State Police (for locations other than New York City);

(3) the sheriff of the county where the facility is located (for locations other than New York City);

(4) the police department having jurisdiction of the area in which the facility is located, of the area in which the patient last resided, of the area in which any person who might be harmed resides; and any other law enforcement agency the clinical staff deems appropriate, including the law enforcement agency having jurisdiction of the patient's likely destination, if known;

(5) any person who may reasonably be expected to be assaulted or otherwise harmed by the patient;

(6) the patient's immediate family and any contact person identified in the patient's case record;

(7) the patient's attorney, if any;

(8) any person or entity the court that committed the patient to the custody of the commissioner may have designated in the order issued under article 730 of the Criminal Procedure Law;

(9) the Director of Forensic Services of the New York State Office of Mental Health; and

(10) the Mental Hygiene Legal Service.

Each notice shall be given by telephone or by any other means reasonably calculated to give prompt actual notice. The police having jurisdiction over the area in which a person who might be harmed resides shall be notified if that person is not contacted by telephone. The facility shall keep a record of all notices given pursuant to this section.

(b) If the patient returns to the facility, persons notified of his or her escape shall be so advised.

Part 541 Defendants Committed To The Custody Of The Commissioner Pursuant To Cpl Section 330.20

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.0 Statement of purpose

This Part contains regulations governing procedures to be followed when a defendant is found not criminally responsible because of mental disease or defect.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.1 Definitions

(a) Administrative privileges means any occasion on which the defendant leaves the buildings to which he or she is restricted for the purpose of receiving care or treatment elsewhere in the facility, with or without the constant supervision of one or more employees of the facility, or any occasion on which the defendant leaves the confines of the facility for the receipt of medical care, appearance in court or attendance at the funeral of an immediate family member, and during which he or she is under the constant supervision of one or more employees of the facility.

(b) Application means an application to the hospital forensics committee.

(c) Clinical director means the person in charge of clinical services at the facility where the defendant is receiving care and treatment. In facilities in which the director is a physician, this term refers to the director. If the director of the facility is not a physician, this term refers to the deputy director for clinical services.

(d) Commissioner means the New York State Commissioner of Mental Health.

(e) Commitment order or recommitment order means an order committing a defendant to the custody of the commissioner for confinement in a secure facility for care and treatment for six months from the date of the order.

(f) Dangerous mental disorder means that a person currently suffers from a mental illness as defined in subdivision (o) of this section, and that because of that mental illness, he or she currently constitutes a physical danger to self or others.

(g) Defendant means a person accused of a crime who is found not responsible for that crime by reason of mental disease or defect.

(h) Director of Forensic Services means the New York State Director of Forensic Services designated to act on behalf of the commissioner for the purposes of this Part.

(i) Discharge order means an order terminating an order of conditions or unconditionally discharging a defendant from the supervision of the courts under the provisions of section 330.20 of the Criminal Procedure Law.

(j) District attorney means the office which prosecuted the criminal action resulting in the verdict or plea of not responsible by reason of mental disease or defect.

(k) Examination order means an order directed to the commissioner requiring that a defendant submit to a psychiatric examination to determine whether the defendant has a dangerous mental disorder, or if he does not have a dangerous mental disorder, whether he is mentally ill.

(l) First retention order means an order which is effective at the expiration of the period prescribed in a commitment order or a recommitment order, authorizing continued custody of a defendant by the commissioner for a period not to exceed one year.

(m) Furlough order means an order directing the commissioner to allow a defendant in confinement pursuant to a commitment order, recommitment order or retention order to temporarily leave the facility for a period not exceeding 14 days, either with or without the constant supervision of one or more employees of the facility.

(n) Hospital forensics committee or committee means a committee established in accordance with section 541.3 of this Part.

(o) Licensed psychologist means a person who is registered as a psychologist under article 153 of the Education Law.

(p) 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.

(q) Mentally ill and in need of care and treatment in a hospital means that a person currently suffers from a mental illness for which care and treatment as an inpatient in a psychiatric center is essential to his welfare and his judgment is so impaired that he is unable to understand the need for such care and treatment.

(r) Office facility or psychiatric center means any inpatient hospital within the Office of Mental Health.

(s) OMH means the New York State Office of Mental Health.

(t) Order of conditions means an order directing a defendant to comply with his prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is an inpatient at a psychiatric center, not to leave the facility without authorization.

(u) Psychiatric examiner means a qualified psychiatrist or a licensed psychologist who has been designated by a clinical director on behalf of the commissioner to examine a defendant pursuant to this section. Such designee need not be an employee of the State Department of Mental Hygiene.

(v) Qualified psychiatrist means a physician who:

(1) is a diplomate of the American Board of Psychiatry and Neurology or is eligible to be certified by that board; or

(2) is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board.

(w) Release order means an order directing the commissioner to terminate a defendant's inpatient status without terminating the commissioner's responsibility for the defendant.

(x) Retention order means a first retention order, a second retention order or a subsequent retention order.

(y) Second retention order means an order which is effective at the expiration of the period prescribed in a first retention order, authorizing continued custody of a defendant by the commissioner for a period not to exceed two years.

(z) Secure facility means a psychiatric center or unit of a psychiatric center operated by the Office of Mental Health staffed with personnel adequately trained in security methods and so equipped as to minimize the risk or danger of escapes. The following facilities are secure facilities: Mid-Hudson Psychiatric Center; Hutchings Regional Forensic Unit; Gowanda Regional Forensic Unit; and Manhattan Forensic Unit.

(aa) Subsequent retention order means an order which is effective at the expiration of the period prescribed in a second retention order or a prior subsequent retention order authorizing continued custody of a defendant by the commissioner for a period not to exceed two years.

(bb) Transfer means the transfer of a defendant from a secure facility to a nonsecure facility.

(cc) Transfer order means an order directing the commissioner to transfer a defendant from a secure facility to a nonsecure facility under the jurisdiction of the commissioner or to any nonsecure facility designated by the commissioner.

(dd) Unescorted administrative privileges means any time during which a defendant leaves the buildings to which he or she is restricted but not the facility where he or she is receiving care and treatment and during which such leaving is with permission of the facility and without the constant supervision of one or more employees of the facility.

(ee) Unit chief means the administrator in charge of the unit where the defendant is receiving care and treatment.

(ff) Verdict means a finding of fact by a judge or jury that a person is not responsible for an alleged crime by reason of mental disease or defect.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.2 Examination of defendants found not responsible for alleged criminal actions by reason of mental disease or defect

(a) Upon a verdict that a defendant is not responsible for alleged criminal conduct by reason of mental disease or defect, the court hearing the case will issue an examination order.

(b) The examination order will specify either that the defendant must be examined in a secure facility or that the defendant may be examined on an outpatient basis. The Director of the Bureau of Forensic Services, acting on behalf of the commissioner, will designate the facility at which the defendant will be examined.

(c) A defendant may be confined in a secure facility for the purpose of examination or examined on an outpatient basis for a period of up to 30 days. The 30-day period commences upon admission to the designated facility or upon the defendant's appearance for outpatient examination. In the event that the examination cannot be completed within 30 days, the clinical director shall apply to the court for an extension of the examination period for an additional 30 days, on forms jointly approved by the Office of Court Administration and the Commissioner of Mental Health.

(d) During the period of examination, physicians at the facility may administer any necessary emergency medical or psychiatric treatment of a defendant in the custody of the commissioner pursuant to an examination order.

(e) Upon being advised by the Director of Forensic Services that a defendant subject to an examination order will be examined at his or her facility, the facility director shall designate two psychiatric examiners to examine the defendant and report to the court. The psychiatric examiners may be members of the Hospital Forensics Committee.

(f) Upon completion of their evaluation of the defendant, each psychiatric examiner shall submit a written report of his or her findings to the clinical director. If the reports disagree, the clinical director shall appoint a third psychiatric examiner to examine the defendant.

(g) Upon receipt of all examination reports, the clinical director shall submit the reports to the court that issued the examination order, in the form jointly adopted by the commissioner and the Office of Court Administration. A copy of all forms and examination reports shall be sent to the director of the Bureau of Forensic Services.

(h) Upon receipt of the reports of the psychiatric examiners, the court may appoint additional psychiatric examiners. If this occurs, the additional psychiatric examiners shall be given free access to the defendant and all clinical records pertaining to the defendant.

(i) After receipt of all examination reports, the court that issued the examination order will conduct a hearing, at which the psychiatric examiners may be asked to testify, to determine whether the defendant has a dangerous mental disorder, is mentally ill and in need of care and treatment in a psychiatric center, or is not mentally ill and may be discharged, unconditionally or subject to an order of conditions.

(j) If the court finds after hearing that the defendant has a dangerous mental disorder, it shall commit the defendant to the custody of the Commissioner of Mental Health for confinement in a secure facility for care and treatment for a period of six months from the date of the order. The director of the Bureau of Forensic Services shall designate the secure facility.

(k) If the court finds after hearing that the defendant is mentally ill but does not have a dangerous mental disorder, it shall issue an order of conditions and an order committing the defendant to the custody of the Commissioner of Mental Health or the Commissioner of Mental Retardation and Developmental Disabilities for care and treatment as a civil patient pursuant to article 9 or article 15 of the Mental Hygiene Law.

(l) If the court finds after hearing that the defendant does not have a dangerous mental disorder and is not mentally ill, it shall discharge the defendant either unconditionally or subject to an order of conditions.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.3 Hospital forensics committee

Each office facility shall establish one or more hospital forensics committees. Each committee shall consist of three persons appointed by the clinical director. Each member shall be a clinician licensed in New York State to practice medicine, psychology or social work. At least one member of the committee shall be a board-certified psychiatrist. At the request of the treatment team prior to the expiration of an order of commitment, recommitment or retention, the committee shall interview the defendant, review all clinical records and submit findings and recommendations to the clinical director, in accordance with the procedures described in section 541.9 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.4 Retention orders

(a) When a defendant is in the custody of the commissioner pursuant to a commitment order, a recommitment order or a retention order, at least 30 days prior to the expiration of the period prescribed in the order, the Director of Forensic Services, acting for the commissioner, shall apply to the court for a release order or a retention order when such order is applied for in conjunction with a transfer order, or the clinical director acting for the commissioner shall apply to the court for a retention order. An application by the clinical director pursuant to this subdivision shall be made on the basis of recommendations submitted to him or her by the treatment team after consultation with the hospital forensics committee. An application by the Director of Forensic Services pursuant to this subdivision shall be made on the basis of recommendations submitted to him or her by the clinical director after consultation with the hospital forensics committee in accordance with the procedures described in section 541.9 of this Part.

(b) The application shall be made to the court which issued the order, or to a superior court in the county in which the facility is located, on forms jointly approved by the commissioner and the Office of Court Administration, and shall be accompanied by a current psychiatric report. The applicant, whether it be the Director of Forensic Services or the clinical director, shall give written notice to the district attorney, the defendant, counsel for the defendant and the Mental Health Information Service when applying to the court. In addition, when the clinical director is the applicant, he or she shall also give written notice to the Director of Forensic Services.

(c) The application and psychiatric report shall contain information necessary for the court to determine if the defendant has a dangerous mental disorder, or is mentally ill but not dangerous, or is not mentally ill, and shall include an accompanying affidavit from at least one psychiatrist supportive of the relief requested in the application. Such affidavit shall be served on all parties entitled to receive the notice of application, pursuant to subdivision (b) of this section, and shall set forth the defendant's clinical diagnosis, a detailed analysis of his or her mental condition which caused the psychiatrist to formulate an opinion, and the psychiatrist's opinion with respect to the defendant. The treatment team leader or a psychiatrist or psychologist familiar with the defendant's current mental condition and case history shall be prepared to testify at any hearing held by the court.

(d) If the recommendation of the hospital forensics committee and the clinical director supports the view that the defendant is not mentally ill, the Director of Forensic Services shall apply for a release order and an order of conditions in accordance with section 541.8 of this Part.

(e) If the recommendation of the hospital forensics committee and the clinical director supports the view that the defendant is mentally ill but not dangerous, and the defendant is currently confined to a secure facility, the Director of Forensic Services may apply for a first, second or subsequent retention order, as appropriate, a transfer order and an order of conditions in accordance with section 541.7 of this Part.

(f) If the recommendation of the hospital forensics committee and the clinical director supports the view that the defendant has a dangerous mental disorder, and the defendant is currently confined to a secure facility, he or she shall apply for a first, second or subsequent retention order, as appropriate, authorizing continued custody of the defendant by the commissioner.

(g) If the clinical director determines that the defendant is mentally ill but not dangerous and the defendant is currently confined in a nonsecure facility, he or she shall apply for a first, second or subsequent retention order, as appropriate, authorizing continued custody of the defendant by the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.5 Administrative privileges

(a) Administrative privileges allowing a defendant to leave the buildings to which he or she is restricted but not the facility, while under the constant supervision of one or more facility employees, may be granted by the clinical director, after consultation with the hospital forensics committee as required by section 541.9 of this Part.

(b) Unescorted administrative privileges allowing a defendant to leave the buildings to which he or she is restricted but not the facility without the constant supervision of one or more facility employees, may be granted by the clinical director after consultation with the hospital forensics committee.

(c) Administrative privileges authorizing a defendant to leave the confines of the facility for the purpose of receiving medical care, appearing in court or attending the funeral of an immediate family member, while under the constant supervision of one or more employees of the facility, may be granted by the Director of Forensic Services upon the recommendation of the clinical director. Such authorization may be obtained by telephone and does not require prior discussion by the hospital forensics committee.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.6 Furlough order

(a) A furlough order must be obtained before a defendant in the custody of the commissioner pursuant to a commitment order, recommitment order or retention order may leave the facility for any period of time up to 14 days, with or without the constant supervision of one or more facility employees. Temporary absence from the facility for medical treatment, court appearance or to attend the funeral of an immediate family member does not require a furlough order.

(b) The Director of Forensic Services may apply to the court which issued the commitment or recommitment order, or a superior court in the county in which the facility is located, for a furlough order upon the recommendation of the clinical director after consultation with the hospital forensics committee.

(c) The application shall be made on forms jointly approved by the commissioner and the Office of Court Administration and shall be accompanied by a current psychiatric report. The commissioner shall give written notice of the application to the district attorney, the defendant, the counsel for the defendant and the Mental Health Information Service.

(d) The Director of Forensics Services shall apply for a furlough order only if the current psychiatric reports support the view that issuance of the order is warranted by the clinical condition of the defendant and would be consistent with the public safety and welfare of the community and defendant. The treatment team leader or a psychiatrist or psychologist familiar with the defendant's current mental condition and case history shall be prepared to testify in support of the application for a furlough order. The Director of Forensic Services shall make recommendations of terms and conditions to the court.

(e) Upon issuance of the furlough order, the clinical director shall extend to the defendant the privileges authorized by such order, but only to the extent and for the duration so authorized. If a change in the defendant's condition warrants suspension of the privileges authorized by the furlough order, the clinical director shall so inform the Director of Forensic Services and may, in the event of an emergency, immediately suspend the privileges.

(f) If the defendant fails to return to the facility at the time specified in the furlough order, he shall be deemed to have escaped and the procedures described in section 541.12 of this Part shall be followed.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.7 Order of transfer

(a) A defendant in a secure facility, pursuant to a retention order or a recommitment order, may not be transferred to a nonsecure facility unless the court that issued the commitment order or recommitment order, or a superior court in the county in which the secure facility is located, issues a transfer order.

(b) The Director of Forensic Services may apply for a transfer order upon the recommendation of the clinical director, after consultation with the hospital forensics committee, in accordance with the procedures described in section 541.9 of this Part. The application shall be made on forms jointly adopted by the commissioner and the Office of Court Administration and shall be accompanied by a current psychiatric report. The Director of Forensic Services shall give written notice of the application to the district attorney, the defendant, the counsel for the defendant and the Mental Health Information Service.

(c) The application and psychiatric report shall contain facts and opinions to substantiate the view that the defendant does not have a dangerous mental disorder or that, consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warrants transfer from a secure facility to a nonsecure facility.

(d) The application shall contain the name and address of the nonsecure facility under the jurisdiction of the commissioner to which the defendant would be transferred, and shall include recommendations of conditions which would be necessary and appropriate.

(e) The treatment team leader or a psychiatrist or psychologist familiar with the defendant's current mental condition and case history shall be prepared to testify in support of the application for a transfer order.

(f) If the court issues a transfer order, the Director of Forensic Services shall transfer the defendant to the nonsecure facility designated on the application, or to a nonsecure facility designated in the transfer order, if different. The defendant's clinical records and copies of all court orders shall be transferred with him. The conditions contained in the order of conditions issued in conjunction with the transfer order shall be observed.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.8 Release order

(a) A defendant in the custody of the commissioner pursuant to a recommitment order or a retention order may not be released unless the court which issued the order, or a superior court in the county in which the facility is located, issues a release order.

(b) The Director of Forensic Services may apply for a release order upon the recommendation of the clinical director, after consultation with the hospital forensics committee in accordance with the procedures described in section 541.9 of this Part, that the defendant no longer has a dangerous mental disorder and is no longer mentally ill.

(c) The application shall be made on forms jointly adopted by the commissioner and the Office of Court Administration and shall contain a description of the defendant's mental condition, the past course of treatment, a history of the defendant's conduct subsequent to his commitment, a written service plan for continued treatment and a detailed statement of the extent to which supervision of the defendant after release is proposed. The written service plan must be prepared by a psychiatrist familiar with the defendant's case history and shall include a statement of the defendant's need, if any, for medication, after-care services and assistance in finding employment; a specific recommendation of the type of residence in which the defendant is to live and a listing of services available in such residence; and a listing of organizations, facilities (including those of the department) and individuals available to provide services in accordance with the identified needs of the defendant. This information is to be provided by the clinical director and accompany his recommendations to the Director of Forensic Services. The Director of Forensic Services shall give written notice of the application to the district attorney, the defendant, counsel for the defendant and the Mental Health Information Service.

(d) The treatment team leader and any psychiatrist familiar with the defendant's current mental condition and case history, including the psychiatrist who prepares the written service plan required by this subdivision, shall be prepared to testify in court in support of the application for a release order.

(e) If the court issues a release order, the Director of Forensic Services shall notify the local social services commissioner and the appropriate State and local mental health representatives that the defendant is about to be released and shall provide them with copies of the written service plan approved by the court in the order of conditions.

(f) At least four days prior to releasing the defendant from a secure facility, excluding Saturdays, Sundays and holidays, the Director of Forensic Services shall deliver written notice of the release to:

(1) the district attorney;

(2) the police department having jurisdiction of the area to which the defendant is released; and

(3) any other person designated by the court.

Written notice may be given by mail, in which case an additional three days, for a total of seven days' notice shall be given to allow time for delivery. If notice is given by telegram or mailgram, an additional day, or a total of five days' notice shall be given to allow time for delivery.

(g) The defendant shall not be released from custody until the services and assistance specified in the order of conditions have been arranged. The clinical director has the continuing responsibility for determining that the defendant is receiving the services specified in the written service plan and is complying with any conditions specified in such plan and the order of conditions.

(h) If it appears that the defendant is not complying with the conditions specified in the order, the Director of Forensic Services shall notify the court which issued the order and the district attorney of that fact. If it appears that the defendant has a dangerous mental disorder, the Director of Forensic Services shall apply for a recommitment order in accordance with the procedures described in section 541.11 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.9 Hospital forensics committee procedures

(a) The hospital forensics committee shall meet to evaluate the current mental condition of a defendant and to make recommendations to the clinical director at the request of the treatment team.

(b) The hospital forensics committee shall meet within five calendar days of receipt of a request by the defendant's treatment team that an application be made for a transfer order, furlough order or release order, or that administrative privileges as described in section 541.5 of this Part be granted. The treatment team may make the request on its own initiative or at the request of the defendant or the defendant's representative. However, the committee may refuse to consider a request made within six months of a previous denial of a similar request.

(c) The committee shall notify the defendant, the defendant's attorney and the Mental Health Information Service of its meeting at least three calendar days in advance of the meeting. The defendant, the defendant's attorney and the Mental Health Information Service may attend the examination, but do not have the right to participate.

(d) The hospital forensics committee shall consider the defendant's records, the recommendations of the treatment team and the report of a current psychiatric examination. A psychiatrist or psychologist on the committee may examine the defendant or the committee may conduct a joint examination.

(e) Within five calendar days of the meeting, the committee shall make a written recommendation to the clinical director regarding the defendant's current clinical condition and whether a specific application would be appropriate in light of the criteria described in the following subdivisions. The recommendation need not be unanimous. If one member of the committee disagrees, he or she shall so notify the clinical director, in writing.

(f) In evaluating the defendant's current mental condition, the committee shall consider whether the defendant has a dangerous mental disorder, is not dangerous but has a mental illness for which inpatient care and treatment is necessary, or is not mentally ill.

(g) In evaluating the merits of any request for administrative privileges, the committee shall consider whether such privileges would be clinically beneficial to the defendant and whether, in its opinion, such privileges could be granted without endangering another person or persons within or without the facility or without rendering an escape attempt likely.

(h) In evaluating the merits of any request that the Director of Forensic Services apply for a transfer order, the committee shall consider whether transfer to a nonsecure facility is consistent with the public safety and welfare of the community and the defendant and is warranted by the defendant's clinical condition. It shall also consider whether the defendant's behavior is such that transfer would jeopardize the safety of other patients or staff at a nonsecure facility, and whether such transfer would render an escape attempt likely.

(i) In evaluating the merits of any request that the Director of Forensic Services apply for a furlough order, the committee shall consider whether furlough would be clinically beneficial and whether the issuance of such order would be consistent with the public safety and welfare of the community. The committee shall also consider whether the patient would pose an immediate danger to another person or persons if allowed outside the facility or would fail to return on time. It shall also recommend the duration of the furlough, the period of time for which the furlough order should remain outstanding and any conditions or limitations on the exercise of furlough privileges.

(j) In evaluating the merits of any request that the Director of Forensic Services apply for a release order, the committee shall consider whether the defendant is mentally ill, in need of care and treatment in a hospital, lacks the judgment necessary to understand such need, and would either be unable to live outside the hospital with the help of family or friends or would pose a danger to himself or others. The committee shall also consider the conditions which would be necessary and appropriate if a release order were to be issued.

(k) The clinical director shall review the committee's written recommendation. If the opinion of the committee is not unanimous, or if the clinical director disagrees with it, he or she may obtain another psychiatric examination of the defendant. If the clinical director determines that an application for a transfer order, a retention order (if applied for in conjunction with a transfer order) or a release order is appropriate for the defendant, he or she shall submit such recommendation to the Director of Forensic Services within 10 days of the receipt of the hospital forensic committee's written recommendation. If the clinical director determines that a retention order is appropriate for the defendant, he or she shall apply for such order in accordance with the provisions of section 541.4 of this Part.

(l) The Director of Forensic Services shall have responsibility for applying to the court for a furlough order, transfer order, retention order which is applied for in conjunction with a transfer order, or release order. If the recommendations of the committee and the clinical director are not unanimous, or if he or she disagrees with them, the Director of Forensic Services may designate another psychiatrist or psychologist to examine the defendant.

(m) In the event the defendant's treatment team becomes aware of a change in his or her condition that would warrant a discontinuation of administrative privileges, withdrawal of an application for a furlough order, transfer order or release order, or would make application for a revocation of such order appropriate, the treatment team shall so notify the clinical director, who shall immediately notify the Director of Forensic Services. The physician treating the defendant or the clinical director may immediately suspend administrative privileges in the event of an emergency.

(n) If the Director of Forensic Services decides to grant administrative privileges or to apply for a court order, he shall so notify the district attorney, the defendant, counsel for the defendant and the Mental Health Information Service; he shall apply to the court for a furlough order, transfer order, retention order or release order following the procedures described in sections 541.4 and 541.6 -541.8 of this Part.

(o) If the court authorizes the discharge or release of a defendant confined in a secure facility, the Director of Forensic Services shall, at least four days, excluding Saturdays, Sundays and holidays, in advance of the discharge or release, deliver written notice to all of the following:

(1) the district attorney;

(2) the police department having jurisdiction of the area to which the defendant is to be discharged or released; and

(3) any other person designated by the court.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.10 Discharge order

(a) A defendant originally committed to the custody of the commissioner pursuant to the provisions of section 330.20 of the Criminal Procedure Law, or former section 330.20 of such law or former section 454 of the Code of Criminal Procedure, may not be discharged except pursuant to a court order.

(b) The Director of Forensic Services may apply for a discharge order when a defendant has been continuously on an outpatient status for three years or more pursuant to a release order. The Director of Forensic Services must be of the view that the defendant does not have a dangerous mental disorder, is no longer mentally ill, and that issuance of a discharge order would be consistent with the public safety and welfare of the community and the defendant.

(c) The Director of Forensic Services shall apply for a discharge order to the court which issued the release order or to a superior court in the county in which the defendant is residing. The application shall be on forms jointly approved by the commissioner and the Office of Court Administration and shall be accompanied by a current psychiatric report. The psychiatric examiner shall be prepared to testify in support of the application. The district attorney, the defendant, counsel for the defendant and the Mental Health Information Services shall be given at least 10 days' written notice of the application.

(d) The issuance of a discharge order results in the termination of the order of conditions and the commissioner's responsibility for the defendant. When a defendant has been discharged pursuant to subdivision 13 of Criminal Procedure Law, section 330.20, neither the commissioner nor the district attorney may thereafter apply for a recommitment order.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.11 Recommitment order

(a) During the period covered by an order of conditions, including periods when the defendant is subject to a retention order or a release order and prior to the issuance of a discharge order, the Director of Forensic Services or the district attorney may apply for a recommitment order if either is of the view that the defendant has a dangerous mental disorder.

(b) The application shall be made to the court that issued the order of conditions or to a superior court in the county in which the defendant is residing, on forms jointly approved by the commissioner and the Office of Court Administration.

(c) The applicant shall give written notice of the application to the defendant, counsel for the defendant, the Mental Health Information Service and the district attorney if the applicant is the commissioner. If the applicant is the district attorney, he shall notify the Director of Forensic Services.

(d) The application shall contain a description of the facts and circumstances which indicate that the defendant has a dangerous mental disorder. The Director of Forensic Services shall designate one or more persons familiar with the defendant's current mental status to testify at the hearing.

(e) The court shall order the defendant to appear before it for a hearing to determine whether he or she has a dangerous mental disorder. If the defendant fails to appear in court as directed, the court may issue a warrant to an appropriate peace officer directing him to take the defendant into custody and bring him before the court.

(f) If the court issues a recommitment order following a hearing in which it has determined that the defendant has a dangerous mental disorder, the Director of Forensic Services shall not transfer, furlough, release or discharge the defendant except pursuant to court order. When a defendant is in the custody of the Director of Forensic Services pursuant to a recommitment order, the procedures governing retention orders described in section 541.4 of this Part apply.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.12 Escape

(a) In the event a defendant leaves the grounds of the facility without prior authorization or fails to return on time from a furlough, the clinical director, the unit chief, the defendant's physician, the defendant's treatment team leader or any other member of the facility staff shall immediately notify:

(1) the district attorney of the county from which the defendant was committed;

(2) the Superintendent of State Police;

(3) the sheriff of the county where the facility is located;

(4) the court which issued the order under which the defendant is currently being held;

(5) the police department having jurisdiction of the area where the facility is located, of the area in which the defendant last resided, of the area in which any person who might be harmed resides; and any other law enforcement agency the clinical staff deem appropriate;

(6) any person who may reasonably be expected to be assaulted or otherwise harmed by the patient;

(7) the patient's immediate family;

(8) the patient's attorney, if any; and

(9) any person or entity the court that committed the defendant to the custody of the commissioner may have designated in the order issued under Criminal Procedure Law, section 330.20.

(b) The Director of Forensic Services and the Mental Health Information Service shall also be notified immediately.

(c) The notice shall be given as soon as the facility staff discover the defendant's absence, and shall include the information necessary to identify the defendant and any person or persons believed to be in danger and the nature of the danger.

(d) Each notice shall be given by telephone. If notice cannot be effected by telephone, a telegram shall be sent and a request shall be made that the telegram be hand-delivered. The police having jurisdiction over the area in which a person who might be harmed resides shall be notified if that person is not contacted by telephone. The facility shall keep a record of notices given pursuant to this section.

(e) the defendant returns to the facility, persons notified of his escape shall be so advised.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.13 Rights of defendants

(a) A defendant committed to the custody of the commissioner pursuant to the provisions of section 330.20 of the Criminal Procedure Law has the rights granted to patients under the Mental Hygiene Law, subject to the limitations and provisions of section 330.20 of the Criminal Procedure Law and this Part.

(b) A defendant dissatisfied with a commitment order, a retention order or a recommitment order may, within 30 days of the order, petition a Supreme Court justice, other than the one making the order, for a rehearing and review. Such review shall be in accordance with the the procedures described in section 9.35 of the Mental Hygiene Law. Unless the defendant consents to trial of the facts by the court, a jury shall be summoned to determine whether retention order, commitment order or recommitment order is appropriate.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 541.14 Patients committed prior to september 1, 1980

Each facility shall, prior to September 1, 1981, apply for either a release order or a retention order, whichever is appropriate, for each patient committed to the custody of the commissioner prior to September 1, 1980 after having been found not guilty by reason of mental disease or defect. The procedures for review of applications for release orders or retention orders described in this Part shall be followed prior to such applications.

Part 542 Firearms

N.Y. Comp. Codes R. & Regs. Tit. 14 § 542.1 Background and intent

(a) The Office of Mental Health is responsible for developing standards which provide an adequate level of safety for patients and residents receiving services in facilities operated or licensed by the Office of Mental Health.

(b) This regulation sets forth the general rule prohibiting possession of firearms at State psychiatric facilities and facilities licensed by the Office of Mental Health.

(c) This regulation also sets forth the limited circumstances under which an exception to this general rule may be granted and the safety standards to which an individual who has been granted such an exception must adhere.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 542.2 Legal base

(b) Section 7.11 (a) of the Mental Hygiene Law gives the commissioner the professional jurisdiction, supervision and control of the office and all department facilities for the mentally ill.

(c) Section 31.03 (h) of the Mental Hygiene Law authorizes the commissioner to promulgate regulations to more effectively assure that the life, health, safety and comfort of persons cared for in family care homes will be adequately protected and promoted, and that such persons will receive the kind and quality of care, supervision and attention required by reason of their condition.

(d) Section 31.04 of the Mental Hygiene Law authorizes the commissioner to adopt regulations which set standards of qualify and adequacy of facilities, equipment, personnel, services, records and the condition of services for the mentally disabled rendered pursuant to an operating certificate.

(e) Section 31.07 of the Mental Hygiene Law authorizes the commissioner to conduct investigations into the operations of providers of service which are required by article 31 to have operating certificates and to make inspections of facilities to determine whether providers are complying with applicable laws, rules and regulations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 542.3 Applicability

This regulation applies to all facilities operated or licensed by the Office of Mental Health and to all individuals authorized pursuant to this Part to possess firearms and ammunition at such a facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 542.4 Definitions

(a) Facility means any place in which services for the mentally ill are provided, including but not limited to a psychiatric center, institute, clinic, ward, family care home, community residence, residential treatment facility, residential care center for adults and hospital, except in the case of a hospital as defined in article 28 of the Public Health Law, it shall mean only a ward, wing, unit, or part thereof which is operated for the purpose of providing services for the mentally ill.

(b) Law enforcement agency means the State Police, the local police department or the sheriff's department.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 542.5 Prohibition of firearms and granting of exceptions

(a) No person shall bring into or possess a firearm at any facility operated or licensed by the Office of Mental Health except as provided in this section.

(b) Family care providers, employees living on the grounds of a State-operated psychiatric facility and members of law enforcement or governmental agencies or correction officers who are employed by the Department of Correctional Services and who are on the grounds of a facility in their official capacity shall be the only individuals eligible to apply for an exception to the prohibition against firearms.

(1) The commissioner or his or her designee may make a determination to grant an exception to a family care provider or other individual living in the home to possess a shotgun, rifle and/or ammunition on the grounds of the family care home for the purpose of hunting, target shooting or gun collecting. A family care provider or other individual living in the home may apply for permission to possess a handgun on the grounds of the family care home only in circumstances where the individual is required to possess a handgun by virtue of his or her status as a member of a law enforcement or governmental agency or where such handgun is part of a collection, provided that the firing mechanism has been removed. Applications to possess firearms shall be made in the manner described in section 542.6 of this Part.

(2) The facility director may make a determination to grant an exception to an employee living on the grounds of a State-operated psychiatric facility to possess a shotgun, rifle and/or ammunition on the grounds of the facility for the purpose of hunting, target shooting or gun collecting. An employee or other individual living on the grounds may apply for permission to possess a handgun on the grounds of a facility only in circumstances where the individual is required to possess a handgun by virtue of his or her status as a member of a law enforcement or governmental agency or where such handgun is part of a collection, provided that the firing mechanism has been removed. Applications to possess firearms shall be made in the manner described in section 542.6 of this Part.

(3) The facility director or commissioner or his or her designee may make a determination to grant an exception to a member of a law enforcement or governmental agency or correction officer employed by the Department of Correctional Services who is on the grounds of a State-operated psychiatric facility while in the performance of official duties. The facility director or commissioner or his or her designee shall determine the manner for granting an exception consistent with Office of Mental Health policy.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 542.6 Application for exception

(a) Individuals seeking an exception to the prohibition against firearms described in section 542.5 of this Part shall apply in writing to the commissioner or his or her designee or facility director. Applications shall be made on such forms as determined by the commissioner. Information required shall include, but not be limited to, the following:

(1) names(s) of individual(s) possessing the firearm(s);

(2) certification that the firearm(s) will only be used for the purposes authorized by section 542.5 of this Part;

(3) identification of all firearms, including permit and/or registration numbers; and

(4) identification and exact location of proposed storage arrangements, including all safety mechanisms.

(b) Individuals making application to possess firearms shall be required to certify that they will comply with all standards set forth in section 542.7 of this Part.

(c) The final determination regarding the request to possess a firearm must be in writing by the commissioner or his or her designee or facility director.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 542.7 Safety standards for securing firearms and ammunition

(a) Individuals who are authorized by the commissioner or his or her designee or facility director to possess firearms on the grounds of a facility shall meet all safety standards described in this section.

(1) All firearms and ammunition possessed by employees living on the grounds of a State-operated facility shall be stored only in the employee's room or home.

(2) All firearms and ammunition possessed in family care homes shall be stored in a section of the home which is not ordinarily accessible to residents.

(3) All firearms and ammunition in family care homes shall be stored in separate double-locked cabinets which are in separate locations. Under no circumstances shall firearms and ammunition be stored in the same cabinet.

(4) Keys to storage cabinets in family care homes shall not be accessible to residents.

(5) All firearms which are part of a gun collection shall be rendered inoperable by removal of the firing mechanism.

(b) The facility safety officer shall inspect all firearms, ammunition and storage arrangements in family care homes at least twice each calendar year.

Part 543 Certificate Of Relief From Disabilities Related To Firearms Possession

N.Y. Comp. Codes R. & Regs. Tit. 14 § 543.1 Background and intent

(a) The Federal Brady Handgun Violence Prevention Act of 1993 (Brady Act) prohibits any person from selling or otherwise disposing of any firearm or ammunition to any person who has been involuntarily "committed to a mental institution" (18 U.S.C. section 922 [d][4]) and further prohibits any person who has been involuntarily "committed to a mental institution" from shipping or transporting in interstate or foreign commerce, or possessing in or affecting commerce, any firearm or ammunition; or receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce (18 U.S.C. section 922 [g][4]).

(b) Under the Federal NICS Improvement Amendments Act of 2007, Public Law 110-180, section 105, the Brady Act was amended to establish the National Instant Criminal Background Check System (NICS). Upon being contacted by a Federal firearm licensee prior to transferring a firearm to an unlicensed person, NICS will provide information on whether a person is prohibited from receiving or possessing a firearm under State or Federal law. NICS contains records concerning certain events, such as criminal convictions and mental health adjudications and findings that may disqualify a person from purchasing a firearm. The 2007 amendments also require the establishment of a "certificate of relief from disabilities" process to permit a person who has been or may be disqualified from possessing a firearm pursuant to 18 U.S.C. section 922(d)(4) and (g)(4) to petition for relief from that disability.

(c) Section 7.09 of the Mental Hygiene Law authorizes the Office of Mental Health to collect, retain, modify or transmit data or records for inclusion in the NICS system for the purpose of responding to NICS queries regarding attempts to purchase or otherwise take possession of firearms, as defined in 18 U.S.C. 921(a)(3). The records which the Office of Mental Health is authorized by law to collect, retain, modify, or transmit are expressly limited to persons who have been involuntarily committed pursuant to article 9 or 10 of the Mental Hygiene Law, article 730 or section 330.20 of the Criminal Procedure Law, section 402 or 508 of the Correction Law or section 322.2 or 353.4 of the Family Court Act. Mental Hygiene Law section 7.09 also requires the office to promulgate regulations establishing a "certificate of relief from disabilities" process for those persons whose records were provided to the Division of Criminal Justice Services or the Federal Bureau of Investigation by the office pursuant to Mental Hygiene Law section 7.09, and who have been or may be disqualified from possessing a firearm pursuant to 18 U.S.C. section 922(d)(4) and (g)(4).

(d) The purpose of these regulations is to establish the required administrative "certificate of relief from disabilities" process for persons whose records were submitted to the NICS system by the Office of Mental Health in accordance with section 7.09 of the Mental Hygiene Law. (The Office of Mental Health has the authority under section 7.09 of the Mental Hygiene Law to transmit the records either directly to the NICS system or through the Division of Criminal Justice Services.) Such relief will be based on a determination of whether the person's record and reputation are such that he/she will not be likely to act in a manner dangerous to public safety and where granting the relief would not be contrary to the public interest.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 543.2 Legal base

(a) Section 7.09 (b) of the Mental Hygiene Law grants 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 or her jurisdiction.

(b) Section 7.09 (j) of the Mental Hygiene Law gives the Commissioner of Mental Health the power and responsibility to establish within the Office of Mental Health an administrative process to permit a person who has been or may be disqualified pursuant to an adjudication under New York State law from possessing a firearm to petition for relief from that disability, and to promulgate regulations for this purpose.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 543.3 Applicability

This Part applies to any person who has been or may be disqualified from possessing a firearm pursuant to 18 U.S.C. section 922(d)(4) and (g)(4), due to being committed to a mental institution or adjudicated as having a mental disability, as such terms are defined in this Part and whose records were submitted to the NICS system by the Office of Mental Health in accordance with section 7.09 of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 543.4 Definitions

For the purposes of only this Part:

(a) Adjudicated as having a mental disability or adjudication as having a mental disability means, and shall have the same meaning as the term adjudicated as a mental defective is defined in Federal regulations at 27 C.F.R. 478.11, a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease is a danger to himself or to others or lacks the mental capacity to contract or manage his own affairs. Such term includes a finding of insanity by a court in a criminal case; and those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850 a, 876b.

(b) Committed to a mental institution means, as such term is defined in Federal regulations at 27 C.F.R. 478.11, a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. Such term includes a commitment to a mental institution involuntarily; commitment for mental defectiveness or mental illness; and commitments for other reasons, such as for drug use, provided, however, that such term does not include a person in a mental institution for observation or a voluntary admission to a mental institution. For purposes of this Part, committed to a mental institution shall include persons who have been involuntarily committed or confined pursuant to article 9 or 10 of the Mental Hygiene Law, article 730 or section 330.20 of the Criminal Procedure Law, section 402 or 508 of the Correction Law, or section 322.2 or 353.4 of the Family Court Act.

(c) Mental institution means and includes hospitals, as defined in section 1.03 of the Mental Hygiene Law, that are licensed or operated by the Office of Mental Health and secure treatment facilities operated by such office.

(d) Qualified psychiatrist means, as that term is defined in section 9.01 of the Mental Hygiene Law, a physician licensed to practice medicine in New York State who:

(1) is a diplomate of the American Board of Psychiatry and Neurology or is eligible to be certified by that board; or

(2) is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 543.5 Process

(a) Request for relief.

(1) An individual who has been or may be disqualified from attempting to purchase or otherwise possess a firearm in accordance with the provisions of subdivision (j) of section 7.09 of the Mental Hygiene Law and whose records were submitted to the NICS system by the Office of Mental Health, may request administrative review by the office to have his or her civil rights restored for such limited purpose.

(2) A request for relief shall be made on forms developed by the office, which shall be available on the office's public website. At a minimum, the forms shall require the applicant to answer all of the following questions under penalty of perjury:

(i) Is the applicant under indictment for, or has he/she been convicted of, a crime punishable by imprisonment for more than one year?

(ii) Is the applicant a fugitive from justice?

(iii) Is the applicant an unlawful user of, or is addicted to, any controlled substance?

(iv) Has the applicant been adjudicated as having a mental disability or committed to a mental institution?

(v) Is the applicant an illegal alien, or has he/she been admitted to the United States under a nonimmigrant visa?

(vi) Was the applicant discharged from the U.S. Armed Forces under dishonorable conditions?

(vii) Has the applicant renounced U.S. citizenship?

(viii) Is the applicant subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or child?

(ix) Has the applicant been convicted in any court of a misdemeanor crime of domestic violence?

(3) In addition to the forms provided, the applicant shall be required to submit further information in support of the certificate of relief. The information must include, but is not limited to:

(i) true and certified copies of medical records detailing the applicant's psychiatric history, which shall include the records pertaining to the commitment to a mental health facility, or adjudication as having a mental disability (as defined in this Part), which is the subject of the request for relief;

(ii) true and certified copies of medical records from all of the applicant's current treatment providers, if the applicant is receiving treatment;

(iii) a true and certified copy of all criminal history information maintained on file at the New York State Division of Criminal Justice Services and the Federal Bureau of Investigation pertaining to the applicant, or a copy of a response from such division and bureau indicating that there is no criminal history information on file;

(iv) evidence of the applicant's reputation, which may include notarized letters of reference from current and past employers, family members or personal friends, affidavits from the applicant or other character evidence;

(v) any further information specifically requested by the office. Such documents requested by the office shall be certified copies of original documents.

(4) The applicant may provide a psychiatric evaluation performed no earlier than 90 calendar days from the date the request for the certificate of relief was submitted to the office, conducted by a qualified psychiatrist. The evaluation should include an opinion, and a basis for that opinion, as to whether or not the applicant's record and reputation are such that the applicant will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief would be contrary to the public interest.

(5) The office reserves the right to request that the applicant undergo a clinical evaluation and risk assessment as determined by the commissioner or his/her designee(s). The evaluation must be performed 45 calendar days from the date the office requests the evaluation, unless the office allows an extension of time.

(6) The request for relief must include a valid authorization form permitting the office to obtain and/or review health information from any health, mental health, or alcohol/substance abuse providers with respect to care provided prior to the date of the application, for the purposes of reviewing the application for relief. Such authorization must comply with applicable Federal or State laws governing the privacy of health information, including but not limited to, as relevant, 45 CFR parts 160 and 164, 42 CFR part 2, Public Health Law section 17 and article 27-F, and Mental Hygiene Law section 33.13.

(7) It is the responsibility of the applicant to ensure that all required information accompanies the request for relief at the time it is submitted to the office. Unless specifically requested by the office, information provided after receipt by the office of the initial request for relief will not be considered. Information specifically requested by the office must be received by the office within 60 days of the date requested in order for it to be considered. Failure to meet this time frame will result in a denial of the certificate of relief.

(b) Scope of review.

(1) The commissioner or his/her designee(s) shall perform an administrative review of the request for relief, which shall consist of a review of all information submitted by the applicant that was required or requested by the office, in accordance with paragraph (a)(3) of this section. The person(s) who conducts the review will not be the individual(s) who gathered the evidence for the administrative request for relief.

(2) Failure of the applicant to provide required or requested information may be the sole basis for denial of the certificate of relief.

(3) The scope of the review shall be to determine, from the materials submitted, whether the applicant will not be likely to act in a manner dangerous to public safety and granting the relief will not be contrary to the public interest.

(1) After review of the application in accordance with subdivision (b) of this section, the commissioner or his/her designee(s) shall prepare a written determination, which shall include:

(i) a summary of the information utilized in reaching the decision;

(ii) a summary of the applicant's criminal history (if any);

(iii) a summary of the psychiatric evaluation prepared to support the request for relief (if any);

(iv) a summary of the applicant's mental health history;

(v) a summary of the circumstances surrounding the firearms disability imposed by 18 U.S.C. section 922(d)(4) and (g)(4);

(vi) an opinion as to whether or not the applicant's record and reputation are such that the applicant will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief would be contrary to the public interest; and

(vii) a determination as to whether or not the relief is granted.

(2) The office shall provide a copy of the written determination to the applicant without undue delay. In addition to a copy of the written determination:

(i) if the relief is granted:

(a) the applicant must be provided with written notice that while the certificate of relief removes the disability from Federal firearms prohibitions (disabilities) imposed under 18 U.S.C. section 922(d)(4) and (g)(4), the determination does not otherwise qualify the applicant to purchase or possess a firearm, and does not fulfill the requirements of the background check pursuant to the Brady Act (Pub. L. 103-159); and

(b) the office must notify the National Instant Criminal Background Check System (NICS) that the certificate of relief has been granted; or

(ii) if the relief is denied:

(a) the applicant must be notified of the right to have the decision reviewed in accordance with applicable State law; and

(b) the office must further advise that the applicant cannot apply again for a request for relief until a year after the date of the written determination to deny the relief requested.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 543.6 Records

The Office of Mental Health, on being made aware that the basis under which a record was made available by the office to the National Instant Criminal Background Check System does not apply or no longer applies, shall, as soon as practicable:

(a) update, correct, modify or remove the record from any database that the Federal or State government maintains and makes available to the National Instant Criminal Background Check System, consistent with the rules pertaining to that database; and

(b) notify the United States Attorney General that such basis no longer applies so that the record system in which the record is maintained is kept up to date.

Part 550 Criminal History Record Checks

N.Y. Comp. Codes R. & Regs. Tit. 14 § 550.1 Background and intent

(a) Section 31.35 of the Mental Hygiene Law imposes the requirement of criminal history record checks on each prospective operator, employee, or volunteer of certain mental health treatment providers who will have regular and substantial unsupervised or unrestricted physical contact with the clients of such providers.

(b) This legislation was intended to enable providers of services to persons with mental illness to secure appropriate and properly trained individuals to staff their facilities and programs, by verifying criminal history information received from individuals seeking employment or volunteering their services.

(c) Pursuant to Chapter 501 of the Laws of 2012, Section 553 of the Executive Law was subsequently enacted to give the Justice Center for the Protection of People with Special Needs the authority to review and evaluate the criminal history information for any person applying to be an employee, volunteer, or consultant for whom a criminal background check is required by law as a condition of employment at any facilities or provider agencies licensed, operated, or certified by the Office of Mental Health (excluding Mental Hygiene Law Article 10 secure treatment units and programs operated in facilities under the jurisdiction of the Department of Corrections and Community Supervision). A technical correction to Chapter 501 was made via Chapter 83 of the Laws of 2013, to change the reference to the Office of Mental Health to the Justice Center in Mental Hygiene Law Section 31.35.

(d) The purpose of this Part is to establish standards and procedures for criminal history record checks that must be followed by mental health treatment providers that are subject to the provisions of Mental Hygiene Law Section 31.35.

History

Amended New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 550.2 Applicability

(a) This Part shall apply to every provider of mental health services which is licensed by, contracts with, or is otherwise approved by the Office of Mental Health to provide services, except:

(1) a facility or program that is directly operated by the Office of Mental Health;

(2) a hospital, as defined in section 2801 of the New York State Public Health Law, that is licensed by the Department of Health; or

(3) a professional licensed pursuant to title 8 of the New York State Education Law, who does not have employees or volunteers who will have regular and substantial unsupervised or unrestricted contact with the clients of such provider.

(b) This Part shall also apply to every applicant to be an operator of a provider of mental health services that meets the criteria set forth in subdivision (a) of this section.

(c) The Justice Center for the Protection of People with Special Needs was given authority, pursuant to Chapter 501 of the Laws of 2012, and Chapter 83 of the Laws of 2013 to review and evaluate the criminal history information for any person applying to be an employee, volunteer, or consultant for whom a criminal background check is required by law as a condition of employment at any facilities or provider agencies under which it has jurisdiction pursuant to Section 488 of the Social Services Law. Reviews and evaluations for such providers will be conducted in accordance with 14 NYCRR Part 701.

History

Amended New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 550.3 Legal base

(a) Section 7.09 of the Mental Hygiene Law grants 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 or her jurisdiction.

(b) Section 31.35 of the Mental Hygiene Law provides that each provider of mental health services subject to its requirements must request, through the Office of Mental Health, a criminal history background check for each prospective operator, employee, or volunteer of such provider of services.

(c) Subdivision (12) of section 845-b of the Executive Law requires the Office of Mental Health to promulgate rules and regulations necessary to implement criminal history information requests.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 550.7 Notification of criminal charges or convictions incurred subsequent to employment/volunteer service

(a) Upon receiving notification from the division that there is a pending criminal action or proceeding, or conviction, with regard to an employee, volunteer, or operator, the Justice Center shall promptly notify the authorized person of a provider of services of the allegation or new conviction.

(b) Upon receiving notification from the Justice Center of the pending criminal action or proceeding, or conviction, the provider of services shall take any and all appropriate action to ensure that the health, safety, and welfare of its clients are protected. Such action or actions shall be documented. In cases involving pending criminal actions or proceedings against employees or volunteers, it shall be the responsibility of the provider of services to monitor the outcome of such proceedings if the employee or volunteer remains in service with the provider.

History

Amended New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015

Part 551 Prior Approval Review For Quality And Appropriateness

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.1 Background and intent

(a) It is the purpose of this Part to establish minimum standards which will ensure that entities providing mental health services which seek an operating certificate from the Office of Mental Health will meet appropriate criteria for quality, safety and fiscal viability.

(b) It is the purpose of this Part to support the efforts of local governmental units in the process of planning and funding local systems of mental health service.

(c) It is the purpose of this Part to expedite the review of projects that are in conformance with the Statewide Plan and to allow for the development and operation of needed and appropriate programs.

(d) This Part establishes an efficient and timely process for the initial licensure of a program, as well as an effective process for notifying affected parties of changes to the local service system.

(e) This Part establishes a process to ensure that all entities applying for licensure are treated equally.

(f) The licensing process established in this Part will be linked to and coordinated with the pertinent licensing practices of other State agencies as appropriate, including but not limited to, the Department of Health, Office of Alcoholism and Substance Abuse Services, Office of Mental Retardation and Developmental Disabilities, and the State Education Department.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.2 Legal base

(a) Section 31.02 of the Mental Hygiene Law requires that a provider of services must be issued an operating certificate in order to engage in the following activities: a residential facility; a freestanding psychiatric inpatient facility; part of a general hospital providing inpatient or nonresidential services; outpatient or nonresidential program; residential treatment facility for children and youth; or comprehensive psychiatric emergency program which serves individuals diagnosed with a mental illness.

(b) Section 31.04 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction and to establish procedures for the issuance and amendment of operating certificates.

(d) Section 31.22 of the Mental Hygiene Law establishes criteria for the approval of certain certificates of incorporation.

(e) Section 31.23 of the Mental Hygiene Law establishes criteria for the approval of facility programs, services and sites.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.3 Applicability

(a) This Part applies to any individual, partnership, association, corporation or proposed corporation or public or private agency which proposes a project described in section 551.6 of this Part.

(b) This Part applies to a provider of services or other organization which requires an operating certificate under article 31 of the Mental Hygiene Law, including those programs and services of an Office of Mental Health operated psychiatric center for which the commissioner has determined that an operating certificate is required. This Part does not apply to State-operated inpatient services.

(c) This Part applies to a facility that requires an operating certificate pursuant to both article 28 of the Public Health Law and article 31 of the Mental Hygiene Law.

(d) This Part does not apply to family care home providers, supported housing, case management programs, or other community support programs that are not required to obtain an operating certificate.

(e) This Part supersedes Part 51 of this Title as it relates to services operated by or under the auspices of the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.4 Definitions

(a) Administrative action means the classification of projects not subject to prior approval review specified in this Part.

(b) Business days are defined as days other than Saturdays, Sundays and legal holidays. In computing business days, the day that the application is received shall be day one.

(1) For inpatient and licensed housing purposes means the total number of beds listed on a program's operating certificate;

(2) For outpatient purposes means the number of recipients who can be served onsite at a given time.

(d) Capital project means acquisition, construction, substantial renovation, or alteration of a building or property that is used, or will be used, by an existing or proposed program. A capital project does not include routine maintenance or minor repairs. A capital project includes one or more of the following:

(1) acquisition means obtaining property through purchase or donation or an interest in property through a lease;

(2) construction means erection of a new building or structural addition to an existing building;

(3) substantial renovation means all changes or rearrangements in a structural plan or architectural or mechanical component of a building made within any 12- month period whose cost exceeds 50 percent of the replacement cost of the building; and

(4) alteration means a change to a building or facility, other than a substantial renovation, that affects or could affect the fire safety or the usability of the building or facility or part thereof. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, re-roofing, painting or wall papering, or changes to mechanical and electrical systems are not alterations unless they affect the fire safety or the usability of the building or facility.

(e) Caseload means the average number of persons actively served by a given outpatient program per month, based on the previous 12-month period.

(f) Clinical services contract means a written agreement between the governing authority of an existing or proposed provider of services and another organization separate from the provider of services for the purpose of obtaining some of the clinical services or some of the clinical staff necessary to operate the program in compliance with requirements for an operating certificate.

(g) Commissioner means the Commissioner of the New York State Office of Mental Health, or his or her designee.

(h) Comprehensive PAR review means the classification of projects subject to prior approval review that are specified in section 551.6(b) of this Part and reviewed pursuant to section 551.9(b)(1) of this Part.

(i) E-Z PAR review means the classification of projects subject to prior approval review that are specified in section 551.6(c) of this Part and reviewed pursuant to section 551.9(b)(2) of this Part.

(j) Governing authority means the provider of services as defined in subdivision (t) of this section or an entity that substantially controls or has the ability to substantially control the provider of services. For the purposes of this Part, factors used to determine whether there is substantial control shall include, but not be limited to:

(1) the right to appoint and remove directors or officers;

(2) the right to approve bylaws or articles of incorporation;

(3) the right to approve strategic or financial plans for a provider of services; or

(4) the right to approve operating or capital budgets for a provider of services.

(k) Health systems agency (HSA) means a corporation organized, approved and operating pursuant to section 2904-b of the Public Health Law.

(l) Inpatient project means a project related to a part of a hospital, as defined in article 28 of the Public Health Law or hospital licensed pursuant to article 31 of the Mental Hygiene Law, which is operated for the purpose of providing a program of 24-hour professional care and treatment to individuals diagnosed with a mental illness. This definition includes a psychiatric inpatient unit of a general hospital, a hospital for persons with mental illness, and a residential treatment facility for children and youth. This definition does not include a place where the services rendered consist solely of non-residential services or licensed housing.

(m) Licensed housing means a congregate group living, supportive apartment, service enriched single room occupancy or crisis residential program for adults, family-based treatment, teaching family home or crisis residential program for children and adolescents, which are licensed pursuant to article 31 of the Mental Hygiene Law.

(n) Local governmental unit (LGU) means the unit of local government given the authority in accordance with article 41 of the Mental Hygiene Law to provide and plan for local or unified services.

(o) Management contract means a written agreement between the governing authority of an existing or proposed provider of services and another organization separate from the provider of services for the purpose of delegating management of all, or part, of the day-to-day non-clinical operations of a program.

(p) Mental Health Services Council (MHSC) means a group of individuals appointed by the governor who advise the commissioner in matters related to mental health services in New York State, pursuant to section 7.05 of the Mental Hygiene Law.

(q) Outpatient project means a project related to a clinic treatment for adults or children, continuing day treatment, partial hospitalization, intensive psychiatric rehabilitative treatment, day treatment, comprehensive psychiatric emergency program, personalized recovery-oriented services, assertive community treatment, or other Office of Mental Health licensed non-residential program.

(r) Program means planned services for the purpose of meeting specified needs of individuals with mental illness, the operation of which requires approval and issuance of an operating certificate granted by the commissioner.

(s) Project means one or more activities or actions specified in section 551.6 of this Part which require approval of the commissioner prior to initiation, implementation, completion, operation, or issuance of an operating certificate.

(t) Provider of services means an entity, as defined pursuant to 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, office or department of the State.

(u) Public funds means Medicaid, Medicare, or any funding appropriated pursuant to article 41 of the Mental Hygiene Law, including local assistance, State aid, community reinvestment funds, and capital funds.

(v) Satellite means a physically separate adjunct site to a certified clinic treatment program, continuing day treatment program, day treatment program serving children or intensive psychiatric rehabilitation treatment program which provides either a full or partial array of outpatient services on a regularly and routinely scheduled basis (full or part time).

(w) Sponsor means the provider of service as defined in subdivision (t) of this section or an entity that substantially controls or has the ability to substantially control the provider of services. For the purpose of this Part, factors used to determine whether there is substantial control shall include but not be limited to:

(1) the right to appoint and remove directors or officers;

(2) the right to approve bylaws or articles of incorporation;

(3) the right to approve strategic or financial plans for a provider of service; or

(4) the right to approve operating or capital budgets for a provider of services.

(x) Volume of services means the total units of service a program provides over a given period of time.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.5 Project planning and consultation

(a) It is the intent of this Part to expedite the review of projects to allow the operation of needed and appropriate projects without undue delay. For those projects that require issuance of an operating certificate, the applicant is expected to be knowledgeable about the requirements for operation of the program for which an operating certificate is sought.

(b) It is the intent of this Part to avoid unnecessary expenditures for the development of a project application. An applicant planning an extensive and expensive project is advised to ascertain the public need for the project within the existing system of mental health programs and services in the county or counties to be served by the project prior to submission of an application to the Office of Mental Health in accordance with this Part.

(c) The applicant shall consult with the local governmental unit through its director of community services or designee in the county or counties to be served by the project prior to submission of an application to the Office of Mental Health in accordance with this Part. The applicant shall provide sufficient information to the local governmental unit regarding the project being planned to enable appropriate consultation and advice.

(1) For E-Z PAR projects, the applicant must obtain a letter of support from the local governmental unit to be included with the E-Z PAR application. If the applicant is unable to obtain a response from the local governmental unit in a timely fashion, the applicant shall consult with the Office of Mental Health.

(2) Program proposing an administrative action as described under section 551.6(d) of this Part shall advise the local governmental unit of their intent, but are not required to obtain a letter of support.

(d) The applicant shall make good faith efforts to consult with designated staff of the Office of Mental Health prior to the submission of an application.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.6 Projects subject to prior approval review

(a) All projects subject to prior approval review will be classified as comprehensive review projects or E-Z PAR review projects. If a project consists of two or more components that fall within separate classifications, the entire project shall be reviewed under the classification that affords reviewers the most time for review pursuant to section 551.9(b) of this Part. All time frames referenced within this section shall begin upon receipt of the project application by the Office of Mental Health.

(b) Projects classified as comprehensive review projects pursuant to this Part include:

(1) establishment of a new program by an applicant who is not currently licensed by the Office of Mental Health or who has been licensed for less than six months;

(2) establishment of licensed psychiatric inpatient beds, or expansion or reduction of licensed psychiatric inpatient beds by at least 15 percent of the licensed capacity of that site or by more than 10 beds, whichever is less;

(3) change of sponsor of a program licensed by the Office of Mental Health, where the new sponsor does not currently operate a program licensed by the Office of Mental Health or has been licensed for less than six months;

(4) closure of a licensed psychiatric inpatient program;

(5) capital projects that are part of a comprehensive PAR or projects that exceed $600,000 or a dollar amount determined by the commissioner based upon average construction cost increases subsequent to 2010; and

(6) a project otherwise eligible for E-Z PAR review that is reclassified as a comprehensive review project pursuant to section 551.9(c) of this Part.

(1) outpatient program projects submitted by an applicant who currently operates one or more programs that are currently licensed by the Office of Mental Health, including:

(i) establishment of a new outpatient program;

(ii) establishment of a new satellite;

(iii) relocation of a licensed outpatient program or satellite to a location outside of the county in which such program or satellite is currently located;

(iv) expansion or reduction of caseload or annual volume of services in a clinic treatment program over any contiguous 12-month period by more than 25 percent;

(v) expansion or reduction of the approved caseload or capacity of an outpatient program, excluding clinic treatment programs, over any contiguous 12-month period by more than 10 percent;

(vi) closing an outpatient program;

(vii) closing of an outpatient satellite with greater than 5.5 full-time equivalent staff;

(viii) substantial change in population served, services provided, or program type; and

(ix) other projects that may have a substantial impact on outpatient mental health services;

(2) licensed housing projects submitted by an applicant who currently operates a program which has been licensed by the Office of Mental Health, including:

(i) expansion or reduction of licensed capacity;

(ii) relocation of licensed housing, including community residences, crisis residences, single room occupancy residences;

(iii) establishment of licensed housing operated by a business corporation or limited liability company;

(iv) establishment of licensed housing not selected through the Office of Mental Health's request for proposal (RFP) process;

(v) closure of licensed housing programs; and

(vi) development of a community residence capital project costing above $250,000;

(3) inpatient projects that involve:

(i) expansion or reduction of licensed psychiatric inpatient beds by greater than five percent and not more than 15 percent, or by a maximum of 10 beds, whichever is less; and

(ii) request for waiver requiring the admission of individuals in emergencies pursuant to section 9.39 of the Mental Hygiene Law as provided in section 31.04 of the Mental Hygiene Law and section 551.12(b) of this Part;

(4) change of sponsor of a program currently licensed by the Office of Mental Health where the new sponsor currently operates a program which has been licensed by OMH for at least six months and is in substantial compliance with Office of Mental Health standards, as determined by the office;

(5) significant change in the terms and conditions of an operating certificate such as program type, population served, special populations served, services or hours of operation by the licensed program or by a discrete component of the licensed program;

(6) capital project costing under $600,000 and above $250,000, or a dollar amount determined by the commissioner based on average construction cost increases subsequent to 2010, for an existing or proposed program;

(7) a project proposing change in ownership of 10 percent or more of the stock of a business corporation pursuant to Part 573 of this Title; and

(8) a project otherwise eligible for an administrative action that is reclassified as an E-Z PAR review project pursuant to section 551.9(c) of this Part.

(d) Projects classified as administrative action do not require the submission of a prior approval review application under this Part. However, the following projects require the submission of information, in a form and format designated by the office, prior to the implementation of a proposed action. Administrative action includes:

(1) capital projects costing under $250,000 for an existing or proposed program which have demonstrated a source of funding for the project;

(2) changes in the operation of a licensed program that do not require E-Z PAR review or comprehensive review under this Part, including but not limited to:

(i) expansion or reduction of inpatient capacity of less than five percent or less than 10 beds, whichever is less;

(ii) expansion or reduction of a clinic treatment program's caseload or volume of services between 10 percent and 25 percent over a recent contiguous 12-month period;

(iii) expansion or reduction of an outpatient program's annual capacity, excluding clinic treatment, up to 10 percent over any contiguous 12-month period;

(iv) minor change in terms and conditions of an operating certificate such as authorized services, population served or days and hours of operation that do not change the overall terms and conditions of the license;

(v) program consolidation with no major program expansion or reduction;

(vi) utilization of a management contract;

(vii) utilization of a clinical services contract; and

(viii) change of satellite location to a full program;

(3) changes in the location of a licensed program that involve:

(i) relocation of an existing outpatient program or satellite within the area currently served by the program or within a service area defined by the local governmental unit;

(ii) relocation of a part of an existing program to establish a satellite location within the area currently served by the program that does not expand the capacity, caseload or volume of services; and

(iii) consolidation of programs or satellite locations without substantial reduction in the overall capacity, caseload, volume of services, or area served by the program;

(iv) closure of an outpatient satellite with 5.5 full-time equivalent staff or less;

(4) transfer of less than 10 percent of the stock of a business corporation or company that does not substantially change the ownership and control of the corporation pursuant to Part 573 of this Title;

(5) approval of a certificate of incorporation or amendment pursuant to subdivision (e) of this section; and

(6) actions pertaining to licensed programs or proposed programs in response to emergency situations.

(e) An application of a project pertaining to a certificate of incorporation as defined in the Not-for-Profit Corporation Law or the Business Corporation Law that requests approval of the certificate by the commissioner shall be reviewed in accordance with the following:

(1) A certificate of incorporation may include, among the powers or purposes of the corporation, operation of one or more facilities, programs, or services that requires an operating certificate from the Office of Mental Health. If the corporation has not been issued such operating certificate, the request for approval of the certificate of incorporation shall be included within the application for a project classified in subdivisions (b) and (c) of this section.

(2) A certificate of incorporation may include, among the powers or purposes of the corporation, operation of one or more facilities, programs, or services that require an operating certificate from the Office of Mental Health. If the corporation has been issued such operating certificate and the proposed change to the certification of incorporation does not substantially affect the powers or purposes for which the operating certificate was issued, the request for approval shall be classified as an administrative action pursuant to subdivision (d) of this section.

(3) A certificate of incorporation may include, among the powers or purposes of the corporation, the solicitation of contributions specifically for operation of one or more facilities, programs, or services that require an operating certificate from the Office of Mental Health. If the certificate of incorporation does not include the power or purpose to operate such facility, program, or service, the request for approval shall be classified as an administrative action pursuant to subdivision (d) of this section.

(4) A certificate of incorporation that does not include among the powers or purposes of the corporation the operation of a facility, program, or service that requires an operating certificate from the Office of Mental Health, or that includes solicitation of contributions specifically for such purpose, shall not require submission or review pursuant to this Part.

(f) As part of an administrative action review, the Office of Mental Health may determine that the scope or impact of the proposed action is substantial and, therefore, shall require the submission of a PAR application pursuant to subdivision (a) of this section. The Office of Mental Health will notify applicant of such determination.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.7 Standards for approval of projects

(a) A project subject to prior approval review of the Office of Mental Health shall be proposed in accordance with this Part through submission of an application as required by the Office of Mental Health. The review of the application shall base approval upon consideration of the extent to which:

(1) the members of the board of directors, officers, owners, partners, members of limited liability companies, and stockholders are of such character, experience, competence, and standing in the community as to give reasonable assurance of their ability to responsibly manage the affairs of the organization and to provide services consistent with the needs, goals, and best interests of recipients, taking into consideration the criminal history record of any natural person operator, if any, obtained in accordance with Part 550 of this Title. Regulatory compliance of existing programs and services will be taken into consideration during review of the application;

(2) the project is consistent with local or unified services plans for mental health services, as applicable;

(3) there is public need for the project at the time and place and under the circumstances proposed;

(4) the project is or will be linked within a system of mental health services and with other service systems;

(5) there is reasonable assurance that funds will be available to finance operating expenses and to finance construction, renovation, and acquisition expenses;

(6) the facility will be safe and appropriate for the type of project proposed;

(7) the program and services proposed are accessible, safe, appropriate, and will comply with requirements for issuance of an operating certificate;

(8) the project will appropriately and competently serve, or arrange to be served, the target population of the program in a manner which addresses individual cultural and ethnic characteristics;

(9) there are no facilities, programs, and services available that may serve as alternatives or substitutes for all or part of the proposed project;

(10) the project demonstrates appropriate and reasonable availability and use of public funds;

(11) if a project proposes closure or termination, the agency will ensure that recipients of mental health services will be linked to appropriate services based on individual need and follow-up will be provided by the applicant to confirm linkages of recipients to services; transportation needs of current recipients will be addressed; and recipient records and financial accounts will be safeguarded;

(12) the project is or will be part of a local system of mental health services;

(13) the project increases the availability of necessary service to the poor and the medically indigent;

(14) if the project proposes to utilize a management contract or a clinical services contract:

(i) the management or clinical services organization and its principals, officers, and directors are of such character, experience, competence, and standing in the community as to give reasonable assurance of their ability to responsibly carry out the requirements of the contract;

(ii) the provider of services, as the holder of the operating certificate, retains sufficient authority and responsibility to demonstrate effective control of the overall program, including the delivery of services, the quality of services, fiscal stability, and compliance with the requirements of OMH;

(iii) the terms and conditions of the contract are reasonable and will not jeopardize the continued operation of the program; and

(iv) the scope of responsibility of the management or clinical services organization under the contract is sufficiently limited such that the organization does not effectively become, in the judgement of the commissioner, the provider of services as defined in section 551.4 of this Part.

(b) Since components of a project may progress at different rates, the review criteria of this Part shall be applied by OMH as appropriate in the application review process.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.8 Application for prior approval review-project scope

(a) Applicants proposing projects under EZ-PAR or Comprehensive PAR review categories shall submit a letter of intent, on prescribed forms, to the Office of Mental Health and the local governmental unit(s), stating that the agency expects to submit an application for a PAR within the next 30-90 period. Submission of a letter of intent is not expected for projects deemed as an emergency.

(b) Applicants proposing projects shall submit applications in a form and format prescribed by the Office of Mental Health. Such form and format shall include instructions for submission of the application, and shall facilitate submission in either paper or electronic format.

(c) The application shall include information as specified by the Office of Mental Health which is relevant to the scope of the proposed project to enable review in accordance with the requirements of this Part.

(d) Projects that are subject to prior approval by the Department of Health under the Public Health Law shall submit an application as prescribed by the Department of Health. The Office of Mental Health reserves the right to request additional information from such applicants to enable conformance with the requirements of this Part.

(1) The Department of Health will request review of such applications by the Office of Mental Health prior to a final decision on the application. The Office of Mental Health will review these applications in accordance with the requirements of this Part before advising the Department of Health of the findings and recommendations of the review.

(2) To assure timely notice to the Office of Mental Health, the applicant shall submit a copy of the application to the Office of Mental Health, as well as the appropriate local governmental unit(s), at the time of submission of the application to the Department of Health.

(3) If the Department of Health does not require submission of an application for a project as described in this Part, the Office of Mental Health shall require submission of an application to the Office of Mental Health for prior approval review under this Part.

(e) An applicant who has a current operating certificate with a duration of less than 12 months, or who has had an operating certificate with a duration of less than 12 months within two years of filing the application, must demonstrate the ability to comply with regulatory requirements in currently licensed programs prior to the Office of Mental Health approving such application.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.9 Review of application for prior approval

(a) The Office of Mental Health shall review the application for completeness of information.

(1) For E-Z PAR applications, a completeness review will be made within three business days. The applicant shall be notified of any lack of information within five business days of receipt of the application. The applicant shall have 10 business days to provide the additional information. Failure to provide such information shall constitute withdrawal of the application.

(2) For comprehensive PAR applications, a completeness review will be made within five business days. The applicant shall be notified of any lack of information within seven business days of receipt of the application. The applicant will have 20 business days to provide the additional information. Failure to provide such information shall constitute the withdrawal of the application.

(3) If no additional information is requested, the application shall be considered as complete.

(b) Upon the receipt of a complete application, the Office of Mental Health shall notify the applicant that review has begun.

(1) For projects undergoing comprehensive PAR review, the Office of Mental Health shall provide copies of the application to the appropriate local governmental unit, health systems agency and other reviewers as appropriate. All reviewers shall have 20 business days to review the application and submit findings and recommendations to the Office of Mental Health. Lack of response by any such reviewer shall be considered by the Office to be a "no objection" and the Office of Mental Health shall proceed with its review of the application. Reviewers may request an extension for cause.

(2) For projects undergoing E-Z PAR review, the Office of Mental Health shall provide copies of the application to the appropriate local governmental unit, health systems agency and other reviewers as appropriate. All reviewers shall have 10 business days to review the application and submit findings and recommendations to the Office of Mental Health. Lack of response by any such reviewer shall be considered by the Office to be a "no objection" and the Office of Mental Health shall proceed with its review of the application. Reviewers may request an extension for cause.

(c) The Office of Mental Health may reclassify a project for review or a local governmental unit may request the Office of Mental Health to reclassify a project for review. A project subject to E-Z PAR review may be considered for comprehensive review and a project subject to administrative action may be considered for an E-Z PAR review. The request shall be based upon a preliminary determination by the Office of Mental Health or local governmental unit that the project will have a significant impact upon the local service system, or is of such complexity, or proposes a substantial expenditure of state or local resources to support the project, such that the additional time is required to allow full consideration of the project prior to making a recommendation to the Office of Mental Health or prior to a decision by the Office of Mental Health.

(d) After review by the local governmental unit, health systems agency and other reviewers as appropriate, the Office of Mental Health shall provide the Mental Health Services Council a reasonable opportunity to review comprehensive PAR projects and to submit recommendations to the Commissioner. Such projects shall be reviewed by the Mental Health Services Council as soon as practicable after the review of the project pursuant to subdivision (b) of this section. A project subject to E-Z PAR review may be reviewed by the Mental Health Services Council upon request of the Chairperson of the Council or as determined by the Office of Mental Health.

(e) The commissioner or his or her designee shall make a decision or proposed decision on the application, based upon the reports of the Office of Mental Health staff, local governmental unit, and where required, the recommendations of the Mental Health Services Council, within 30 business days for E-Z PAR applications and 90 business days for comprehensive PAR applications from the time a complete application was received by the Office of Mental Health, whenever possible. The commissioner's decision may be:

(1) approval of the project and authorization to proceed;

(2) approval of the project but denial of public funds;

(3) conditional approval, with or without authorization to proceed; or

(4) disapproval of the project.

(f) If the commissioner proposes to disapprove the project, the applicant and other interested parties shall be notified in writing and the applicant shall be afforded an opportunity to be heard in accordance with Part 503 of this Title before the decision is final.

(g) If the commissioner proposes a decision contrary to a recommendation of approval or disapproval by the local governmental unit, the commissioner shall afford the local governmental unit an opportunity to request a public hearing. The request for a hearing shall be submitted within 10 days of notification of the decision.

(h) When a decision is reached, after a hearing if necessary, the commissioner shall notify the applicant and all reviewers of the decision and shall advise the applicant of the procedure to be followed in submitting additional information as set forth in this Part.

(i) Unless otherwise specified, project approvals shall be time limited to six months. Prior to the end of six months, an applicant may request in writing an extension of the approval. An applicant who asks for an extension of the six-month period must demonstrate to the commissioner's satisfaction that the conditions under which approval was granted have not substantially changed and that the project is moving, or will move, forward toward implementation within a reasonable period of time.

(j) Failure to respond on a timely basis to conditions of approval or to submit physical plant information as required by this Part shall result in the application being considered to be withdrawn.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.10 Review of physical facility

(a) If the project includes acquisition, construction, substantial renovation, or alteration as defined in section 551.4 of this Part, the applicant shall submit information as required by the Office of Mental Health to assure compliance with appropriate building, safety, and design standards. Such information shall be submitted within four months of Commissioner approval of the PAR application.

(b) If the premises are to be leased but not owned by the applicant, the applicant shall identify the owners of the premises and, if the owner is a corporation, include the names of all incorporators and directors. The lease or proposed lease shall include the following language:

"The landlord acknowledges that rights of reentry into the premises set forth in this lease do not confer on the landlord the authority to operate on the premises a facility for the mentally disabled, as defined in article 1 of the Mental Hygiene Law."

(c) The Office of Mental Health shall review the submission required by this section and advise the applicant if additional information is required. When satisfied that the applicant has demonstrated the project will comply with applicable regulations and standards, the Office of Mental Health shall notify the applicant that he/she is approved to proceed with the project.

(d) Approval to proceed does not imply that the Office of Mental Health or any other State agency will be responsible for financing some or all costs associated with the project. The provider is responsible to ensure adequate funding is available.

(e) Approval of the project may be rescinded at the discretion of the Office of Mental Health if there is no substantial progress toward completion within six months of final approval or if a project falls six months behind the approved development schedule.

(f) The applicant shall request prior approval of any changes relating to the scope of the project or significant increase in the cost of the project.

(g) Upon completion of approved construction or renovations, the applicant shall submit a statement by the architect or engineer that all work has been completed in accordance with applicable codes and plans approved by the Office of Mental Health.

(h) Upon completion of the project, and prior to initiation of an approved program, an inspection of the site may be made by OMH to assure that the project has been completed in compliance with approved plans and is otherwise ready to be issued an operating certificate, if applicable. The Office of Mental Health may conduct such inspections prior to completion of the project.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.11 Licensed housing

(a) The establishment of licensed housing developed through the Office of Mental Health's request for proposal (RFP) process by entities currently operating licensed housing will not require submission of a PAR application. However, in order for licensed housing to receive an initial operating certificate, providers shall demonstrate compliance with applicable Parts of Title 14 NYCRR.

(b) Projects which include new construction or substantial renovation as defined in section 551.4 of this Part shall meet the following requirements:

(1) the facility shall be designed and constructed to be readily accessible to, and usable by, persons with physical disabilities;

(2) the design of the facility shall meet the most current requirements of the applicable sections of the Americans with Disabilities Act and the ADA Standards for Accessible Design ( 28 CFR parts 35 and 36);

(3) all common use space shall be accessible; and

(4) no less than five percent of the facility's occupancy, or at least one bedroom, whichever is greater, shall be accessible.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 551.12 Additional criteria for inpatient projects

(a) In addition to the criteria of sections 551.7 and 551.10 of this Part, applications for inpatient projects shall be reviewed against criteria in this section.

(b) No application for the issuance of an operating certificate of a psychiatric inpatient unit of a hospital licensed pursuant to article 28 of the Public Health Law, which is applying for an operating certificate pursuant to Part 580 of this Title, shall be granted unless the applicant hospital is, or will be, approved to admit individuals in emergencies pursuant to section 9.39 of the Mental Hygiene Law, except as or provided pursuant to the authority granted in section 31.04 (a)(4) of the Mental Hygiene Law and as outlined below.

(1) The commissioner shall waive this requirement for a period of two years upon determination that:

(i) there is no public need for additional beds for emergency psychiatric admission in the service area. In determining such need, the factors which the commissioner shall consider include, but shall not be limited to:

(a) the current and projected population characteristics of the service area, including the prevalence of mental illness in the population;

(b) the current patterns of utilization of psychiatric services and the service demands of the service area; and

(ii) the hospital lacks the physical capacity to reasonably accommodate such emergency admissions without extensive structural changes. For the purpose of this section, extensive structural changes shall consist of any project for which the costs of accommodating emergency admissions will unreasonably increase the psychiatric inpatient rate of the hospital;

(iii) the hospital does not and reasonably could not provide the scope of services necessary to assure adequate and appropriate psychiatric care and treatment for patients in emergency situations; or

(iv) the hospital has agreed to accept referrals of involuntary psychiatric patients under an emergency admissions system which has been approved by the commissioner. In determining whether such a proposed system should be approved, the commissioner, in consultation with the local governmental unit, shall consider whether such proposal:

(a) defines the specific area to be served;

(b) provides for sufficient beds for emergency psychiatric admissions to meet the public needs identified for the service area pursuant to subparagraph (i) of this paragraph;

(d) projects the number of admissions that will occur at the hospital covered under the proposal; and

(e) effectively addresses the availability of emergency psychiatric admissions to meet the projected public needs.

(2) No hospital without an on-site emergency room shall be required to accept patients in need of emergency observation, care and treatment. No application for the issuance of an operating certificate for a psychiatric inpatient unit of such hospital shall be accepted until the hospital has agreed to accept referrals of involuntary psychiatric patients under an emergency admission system which has been approved by the commissioner, except the commissioner may waive this requirement for a period of two years pursuant to paragraph (1) of this subdivision.

(3) Nothing in this Part shall prevent the commissioner from requiring a hospital to admit patients under section 9.39 of the Mental Hygiene Law on an emergency basis if the health or welfare of the public so requires.

(4) Prior to granting a waiver to a hospital, the commissioner shall consider the comments of the director of the local governmental unit of the specific service area.

(1) the advice and recommendations of the local governmental unit;

(2) current or anticipated psychiatric treatment alternatives to acute psychiatric inpatient care which lessen the need for inpatient care;

(3) whether the project improves the network of services available to patients in the service area;

(4) for projects serving children and adolescents:

(i) conformance with admission and utilization review practices which emphasize the shortest lengths of stay clinically appropriate in order to prevent the child's or adolescent's estrangement from family and community;

(ii) conformance with discharge practices which emphasize planning for discharge from the time of admission, prevention of family or community estrangement, and post discharge follow-up responsibility for all patients; and

(iii) conformance with the policy of developing smaller, specialized children/adolescents units that serve children and adolescents as close to their own communities as possible. Specifically, the Office of Mental Health will consider location of beds, number of beds, travel distances to obtain service in the proposed service area, public transportation, other access factors, and service area plans for children and adolescent beds.

Part 552 Audits Of Office Of Mental Health Licensed Or Operated Facilities, Programs Or Units

N.Y. Comp. Codes R. & Regs. Tit. 14 § 552.1 Background and intent

(a) The Office of Mental Health (OMH) is accountable to the public for the resources provided to carry out services within State-licensed or operated facilities and program units that fall under its auspice. OMH has the responsibility to apply resources efficiently, effectively and economically to achieve the purposes for which the resources were appropriated.

(b) The purpose of this Part is to establish standards for the administration of audits which are conducted to measure the extent of compliance with applicable fiscal, administrative and program requirements.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 552.2 Legal base

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health the powers and responsibility to adopt regulations which are necessary 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 individuals with a diagnosis of mental illness pursuant to an operating certificate.

(b) Section 31.07 of the Mental Hygiene Law grants the commissioner the power to conduct investigations into the operation of providers and to make inspections and examine records, including, but not limited to medical, service and financial records of facilities.

(c) Section 31.09 (a) of the Mental Hygiene Law grants the commissioner certain powers, including the power to inspect facilities and examine the records thereof.

(d) Section 31.11 of the Mental Hygiene Law establishes the duty of every holder of an operating certificate to assist the Commissioner of Mental Health by complying with the Mental Hygiene Law and other applicable laws and the regulations of the commissioner, and by cooperating with the commissioner in any investigation or inspection and permitting the commissioner or an authorized representative to inspect its facility and all books and records.

(e) Section 43.02 (a) and (b) of the Mental Hygiene Law grant the commissioner the power to set rates for facilities licensed under article 31 of the Mental Hygiene Law and to require that such facilities submit such financial, statistical and program information as the commissioner may determine necessary. Section 43.02(c) authorizes the commissioner to adopt regulations establishing a uniform system of reports and audits relating to quality of care, utilization and cost of services.

(f) Sections 364 (3) and 364-a (1) of the Social Services Law establish the Office of Mental Health's responsibility for establishing and maintaining standards for care and services provided to persons eligible for Medicaid reimbursement in facilities under its jurisdiction in accordance with cooperative arrangements with the Department of Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 552.3 Applicability

(a) This Part applies to any provider of services which operates a program which provides services to individuals with a diagnosis of mental illness and is licensed pursuant to article 31 of the Mental Hygiene Law. Additional rules concerning audits of private psychiatric hospitals and residential treatment facilities for children and youth are found in section 577.6 and section 578.6 of this Title, respectively.

(b) This Part applies to a State operated program which provides services to individuals with a diagnosis of mental illness.

(c) This Part applies to any provider of services which has entered into contract with or receives funding from the Office of Mental Health.

(d) This Part does not apply to a provider of inpatient services which is licensed pursuant to both article 28 of the Public Health Law and article 31 of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 552.4 Definitions

(a) Abuse means practices that are inconsistent with sound fiscal, business, medical or professional practices and which result in unnecessary costs to the program, payments for services which were not necessary, or payments for services which fail to meet recognized standards for mental health care.

(b) Audit means a review and evaluation of a facility, program or unit by an objective and independent individual or team to determine whether or not resources and/or funds are being utilized in an appropriate and effective manner or to determine whether or not the expected results established by the Office of Mental Health, control agencies, the Legislature or other identified standard setting bodies are being achieved.

(c) Fraud means an intentional deception or misrepresentation made with the knowledge that the deception could result in an unauthorized benefit to the provider or another person and includes the acts prohibited by section 366-b of the Social Services Law.

(d) Provider of service means the entity which is responsible for the operation of the facility or program. Such entity may be an individual, partnership, association or corporation. For purposes of this Part the term also applies to a psychiatric center, facility or program operated by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 552.5 Record retention, notification process and written representation

(a) All fiscal, statistical and programmatic records and reports and all underlying books, records, documentation and reports which formed the basis for the provider of service's fiscal, statistical and programmatic reports are subject to audit including records of a related party or holding company. Such information must be kept and maintained by the provider of service for a period of not less than six years of filing of the fiscal, statistical or programmatic report, or the date such records were required to be filed.

(b) Such information must be furnished upon request, to appropriate State, Federal or local agencies for audit and review.

(c) Prior to the initiation of any audit, the Office of Mental Health may choose to notify the provider of service verbally or in writing of the intent to audit and request an opening conference. At the opening conference, the nature and scope of the audit will be discussed.

(d) The Office of Mental Health shall determine the time, manner and place of the audit.

(e) The provider of service must cooperate with Office of Mental Health staff or agents of the Office of Mental Health by filing all financial reports required by the office, including but not limited to those required pursuant to section 43.02 (b) and (c) of the Mental Hygiene Law and the requirements of this Part making available all documentation and information requested in a timely manner. Failure to timely file such required financial reports may result in an enumerated withhold of Medicaid payments until such time as such reports are appropriately filed, in addition to any other penalties or administrative actions.

(f) Where feasible the Office of Mental Health may enter into an agreement with other agencies and organizations having audit responsibilities to assist in the execution of an audit. The Office of Mental Health reserves the right after entering into any such agreement, to use the findings of the combined audit or to perform an independent audit of either limited or comprehensive scope of the same fiscal period audited by the other agency or organization.

(g) Upon completion of an on-site field audit, the Office of Mental Health will afford the provider of service the opportunity for a closing conference at which time the findings will be reviewed and explanation and/or additional materials may be presented by the provider of service or auditor.

(h) At the conclusion of the audit, the auditors shall prepare, and the provider of service shall sign, a written representation letter to confirm that all pertinent records have been made available and that all relevant information has been disclosed to the auditors. Such written representations from the provider of service shall be used to confirm oral statements and to reduce the likelihood of misunderstandings between the provider of service and the auditors.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 552.6 Draft audit report

(a) A draft audit report shall be issued identifying the items which are being disallowed and advising the provider of the basis for any proposed actions and the legal authority for such actions. When feasible, the draft report will also specify the amount of overpayment or proposed repayment. The draft report may also include other findings dealing with the provider of service's fiscal, administrative and program activities as well as recommendations to improve such activities.

(b) The draft audit report shall contain a clear statement of the action to be taken by the provider of service, shall afford an opportunity to object to the proposed action within 30 days of the issuance of the report and shall advise that a failure to respond within the time period allotted may result in the adoption of the draft report action as the final report.

(c) Unless otherwise granted an extension of time by the Office of Mental Health, the provider of service's response to the draft report must be mailed within 30 days of receipt of the report, which shall commence five days from the date of mailing. It shall include a statement detailing the specific items of the draft report to which the provider of service objects and provide any additional materials or documentation which the provider of service wishes to be considered in support of the objections.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 552.7 Final audit report

(a) After receipt of the provider of service's response to the draft report, or at any time after the expiration of 30 days from the mailing of the draft report, a final report may be issued. Prior to issuance of the final audit report, the Office of Mental Health must consider the provider of service's comments and, any supporting documents and materials which have been submitted.

(b) The final audit report shall include:

(1) a statement of the nature and amount of the audit findings, the basis for the action and the statutory, regulatory or other legal basis supporting the action;

(2) if necessary, a request for a clearly delineated plan of corrective action;

(3) a request that the provider of service attach a repayment schedule for the amount due the State as a result of the audit; and

(4) the provider of service's response to the draft audit report or, at the Office of Mental Health's discretion, a synopsis of such response.

(c) Upon the completion of a final audit, the Office of Mental Health may determine that the report should be forwarded to another agency(s) for further action. In the event of a finding of Medicaid fraud or abuse, such report shall be forwarded to the New York State Department of Social Services for appropriate action.

(d) The provider of service's response to the final audit report shall include:

(1) a plan of corrective action including the dates of implementation for each recommendation; and

(2) in the event that the Office of Mental Health has determined the existence of an overpayment of Office of Mental Health local assistance or other funding, a repayment schedule for the amount due the Office of Mental Health or State.

(e) Repayment schedules shall be negotiated between the provider of service and the Office of Mental Health. Upon the final approval by the Office of Mental Health, any balance remaining unpaid after a period deemed reasonable shall be assessed interest, compounded daily, using the corporate underpayment rate of the New York State Department of Taxation and Finance. A reasonable period of time shall be defined as normally one year unless circumstances support the approval of a longer period of time. Interest charges shall accrue from the first day following the end of the repayment period and shall continue until the provider of services obligation is fulfilled.

(f) The provider of service's response to the final audit report must be mailed within 45 days of receipt of the final report. Failure to respond within that time period will be considered by the Office of Mental Health to be a violation of the provider of service's operating license, and appropriate legal action will be taken.

Part 553 Visitation And Inspection Of Facilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 553.1 Introduction

(a) All facilities under the jurisdiction of the Office of Mental Health will be visited and inspected by reviewers designated by the commissioner in accordance with the provisions of this Part. Unless otherwise specifically stated in this Part, reviewers shall be personnel of the office who are competent and qualified to conduct such inspections.

(b) This Part supersedes and replaces Part 71 of this Title with respect to facilities under the jurisdiction of the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 553.2 Legal base

(b) Subdivisions (a) and (b) of section 7.15 of the Mental Hygiene Law authorize the Commissioner of Mental Health to evaluate programs and services of prevention, diagnosis, examination, care, treatment, rehabilitation, training, and research for persons with mental illness, and permits such activities to be undertaken in cooperation and agreement with other offices of the department and with other departments or agencies of the State, local or Federal government, or with other organizations and individuals.

(c) Sections 31.02 and 31.04 of the Mental Hygiene Law authorize the Commissioner of Mental Health 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.

(d) Section 31.05 of the Mental Hygiene Law establishes criteria for the issuance of operating certificates.

(e) Section 31.07 of the Mental Hygiene Law gives the Commissioner of Mental Health the power to conduct periodic investigations into the operations of providers of services which are required by article 31 of such law to have an operating certificate and to make inspections and examine records, including, but not limited to, medical service and financial records, to determine whether such providers are complying with applicable provisions of the Mental Hygiene Law and applicable laws, rules and regulations.

(f) Section 31.08 of the Mental Hygiene Law authorizes the Commissioner of Mental Health to exempt a ward, wing, unit or other part of a hospital as defined in article 28 of the Public Health Law, which provides services for persons with mental illness pursuant to an operating certificate issued by the Commissioner of Mental Health, from the annual inspection and visitations requirements established in section 31.07 of the Mental Hygiene Law, under certain specified circumstances.

(g) Section 31.09 of the Mental Hygiene Law gives the Commissioner of Mental Health or his/her authorized representative the power to inspect facilities, examine records, conduct examinations and interviews, and obtain such other information as necessary in order to carry out his/her responsibilities under article 31 of such law. Further, all such investigations and inspections shall be made by persons competent to conduct them, and information obtained by the commissioner or his/her authorized representative shall be kept confidential in accordance with the provisions of applicable law.

(h) Section 31.11 of the Mental Hygiene Law requires every holder of an operating certificate to assist the Office of Mental Health in carrying out its regulatory functions by cooperating with the commissioner in any inspection or investigation, permitting the commissioner to inspect its facility, books and records, including records of persons receiving services, and making such reports, uniform and otherwise, as are required by the commissioner.

(i) Sections 31.13 and 31.19 of the Mental Hygiene Law further authorize the commissioner or his or her representatives to examine and inspect such programs to determine their suitability and proper operation.

(j) Paragraphs (1) and (8) of subdivision (a) of section 41.13 of the Mental Hygiene Law direct local governmental units to review services and local facilities for persons with mental disabilities of the area which it serves and their relationship to local need; and to make policy for and exercise general supervisory authority over or administer local services and facilities provided or supervised by it whether directly or through agreements, including responsibility for the proper performance of the services provided by other facilities of local government and by voluntary and private facilities which have been incorporated into its comprehensive program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 553.3 Scope of reviews and inspections

(a) For purposes of this Part, "facilities under the jurisdiction of the Office of Mental Health" shall mean facilities required to obtain an operating certificate from the Commissioner pursuant to Article 31 of the Mental Hygiene Law.

(b) Prior to visiting a facility, the reviewer will study reports of previous reviews and inspections and the following information submitted by the facility:

(1) clinical and statistical data, and

(2) the policies of the facility.

(1) review of program operation in comparison to programs authorized;

(2) private conversation with any person receiving mental health services or employee who so desires;

(3) review of case records of persons currently or previously served;

(4) review of the legal admission documents of persons receiving services and the conformity of the facilities admission procedures with the law and regulations;

(5) review of the records of restraint and seclusion;

(6) review of the qualifications of the staff and the staffing pattern in comparison to those authorized;

(7) inspection of the records and storage of medications, and procedures for prescription and dispensing of medications;

(8) review of the minutes of meetings of the governing body;

(9) inspection of the physical plant and equipment, and review of protective procedures in relation to structural and fire hazards;

(10) identification of any construction or improvements to the premises completed since the last visit; and

(11) review of written reports by local inspectors and other authorized inspection, certifying, or accrediting agencies, and review of conditions about which any recommendations for improvement have been made.

History

Amended New York State Register January 06, 2016/Volume XXXVIII, Issue 01, eff. 1/6/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 553.4 Reports

(a) Unless otherwise provided in subdivision (b) of this section, a written report of each review and inspection shall be developed and sent to the facility by the office and shall include, as indicated, significant findings of merit or opportunities for improvement with regard to any aspects of the facility. When required, the facility shall respond with an action plan addressing the office's findings.

(b) For hospitals that have been granted deemed status pursuant to section 553.5 of this Part, such hospital, or The Joint Commission or other approved accreditation agency, will provide the office with a copy of the final accreditation report. When required, the facility shall respond to The Joint Commission and the Office with an action plan addressing The Joint Commission's findings.

(c) The office shall make available copies of reports that it has developed and sent to facilities in accordance with subdivision (a) of this section to the local governmental unit for facilities within such local governmental unit's jurisdiction, provided, however, for hospitals which have been granted deeming status under section 553.5 of this Part, such hospitals shall provide a copy of the final report developed by The Joint Commission to the local governmental unit, upon its request.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 553.5 Deemed status

(a) Applicability. For purposes of this section, the term hospital shall mean a general hospital, as defined in article 28 of the Public Health Law, which provides services for persons with mental illness pursuant to an operating certificate issued by the Commissioner under article 31 of the Mental Hygiene Law, operating in accordance with applicable provisions of this Title. The provisions of this section shall apply to such hospitals.

(b) Reviews conducted pursuant to this section of hospitals that have sought and obtained deemed status shall be made by personnel of a nationally accredited review organization, who possess the necessary skills and competencies in behavioral health to conduct inspections.

(c) Hospitals must comply with all operational standards set forth in applicable provisions of this Title. As evidence of compliance with such provisions, the commissioner may accept accreditation by The Joint Commission or an accreditation agency to which the Centers for Medicare and Medicaid Services has granted deeming status and which the commissioner has determined has accrediting standards sufficient to assure the commissioner that hospitals so accredited are in compliance with such operational standards, a list of which shall be made available on the public website of the office, provided that:

(1) the hospital has a history of compliance with applicable laws, rules, and regulations and a record of providing care of good quality, as determined by the commissioner;

(2) a copy of the survey report and the certification of accreditation of The Joint Commission or other approved accrediting organization is submitted by the accrediting body to the commissioner, within seven days of issuance to the hospital;

(3) The Joint Commission or other approved accrediting organization has agreed to, and does evaluate, as part of its accreditation survey, any minimal operational standards established by the commissioner which are in addition to the minimal operational standards of accreditation of The Joint Commission or other approved accrediting organization;

(4) there are no constraints placed upon access by the commissioner to The Joint Commission or other approved accreditation organization's survey reports, plans of correction, interim self-evaluation reports, notices of noncompliance, progress reports on correction of areas of noncompliance, or any other related reports, information, communications, or materials regarding such hospital;

(5) the hospital at all times shall remain subject to inspection and visitation by the commissioner to determine compliance with applicable law, regulations, standards, or conditions as determined to be necessary by the commissioner; and

(6) the hospital at all times shall remain subject to the full range of licensing enforcement authority of the commissioner.

(d) Any hospital that is under deemed status pursuant to this section must immediately provide written notice to the commissioner of any of the following:

(1) receipt of notice of failure to be accredited, re-accredited or the loss of accreditation by the accreditation organization;

(2) any communication the hospital has received that indicates that the accrediting organization will be recommending that such hospital not be accredited, not have its accreditation renewed, or have its accreditation terminated;

(3) receipt of notice or other communication from the Centers for Medicare and Medicaid Services regarding a determination that the hospital will be terminated from participation in the Medicare program because it is not in compliance with one or more conditions of participation in such program, or has deficiencies that either individually, or in combination with others, jeopardizes the health and safety of persons receiving services, or are of such nature as to seriously compromise the provider's ability to render adequate care;

(4) a change of the hospital's accreditation organization; or

(5) a decision by the hospital to terminate its agreement with its accrediting organization.

(e) Failure to adhere to the requirements set forth in subdivisions (c) and (d) of this section may be grounds for revocation of deemed status.

(f) In the event that the commissioner determines that a hospital's deemed status must be denied or revoked, the hospital may request an informal administrative review of such decision.

(1) The hospital must request such review in writing within 15 days of the date it receives notice of the denial or revocation of its deemed status by the commissioner or designee. The request shall state specific reasons why the hospital considers the denial or revocation of deemed status incorrect and shall be accompanied by any supporting evidence or arguments.

(2) The commissioner or designee shall notify the hospital, in writing, of the results of the informal administrative review within 20 days of receipt of the request for review. Failure of the commissioner or designee to respond within that time shall be considered confirmation of the denial or revocation of deemed status.

(3) The commissioner's determination after informal administrative review shall be final and not subject to further administrative review.

History

Amended New York State Register January 27, 2016/Volume XXXVIII, Issue 04, eff. 1/27/2016

Part 557 COVID-19 Vaccination Program

N.Y. Comp. Codes R. & Regs. Tit. 14 § 557.1 Background and intent

(a) COVID-19 is an unpredictable disease that can cause serious illnesses and death. In response to this increased public health threat, New York must take active steps to prevent and control transmission of COVID-19. The seriousness of the continuing threat and the failure to achieve acceptable vaccination rates through voluntary programs necessitate further action.

History

Adopted New York State Register September 28, 2022/Volume XLIV, Issue 39, eff. 9/8/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 557.2 Legal Base

(b) Section 7.09 of the Mental Hygiene Law gives the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under the Commissioner's jurisdiction.

(c) Section 31.04 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to adopt regulations to effectuate the provisions and purposes of Article 31 of the Mental Hygiene Law, including procedures for the issuance and amendment of operating certificates, and for setting standards of quality and adequacy of facilities.

History

Adopted New York State Register September 28, 2022/Volume XLIV, Issue 39, eff. 9/8/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 557.3 Applicability

(a) This Part applies to Hospitals and STARC Programs as defined in Part 557.4.

History

Adopted New York State Register September 28, 2022/Volume XLIV, Issue 39, eff. 9/8/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 557.4 Definitions pertaining to this Part

(a) Commissioner shall mean the Commissioner of Mental Health.

(b) COVID-19 vaccine or vaccine shall mean a vaccine currently licensed for immunization and distribution in the United States by the Food and Drug Administration (FDA) for active immunization for the prevention of COVID-19, or authorized for such use by the FDA pursuant to an Emergency Use Authorization (EUA) or as an Emergency Investigational New Drug (EIND).

(c) Fully Vaccinated shall mean fully vaccinated for COVID-19 for a period of 2 weeks or more after receiving either (1) the second dose in a 2-dose series (e.g., Pfizer-BioNTech or Moderna), or (2) a single-dose vaccine (e.g., Johnson & Johnson /Janssen), authorized for emergency use or approved by the U.S. Food and Drug Administration, and holds an emergency use listing by the World Health Organization.

(d) Hospital shall mean a hospital named in Mental Hygiene Law section 7.17(b), excluding the Nathan S. Kline Institute for Psychiatric Research. Hospital shall also mean a program operated pursuant to Parts 580, 582, or 590 of this Title.

(e) Office shall mean the Office of Mental Health.

(f) Staff shall mean all persons employed or affiliated with a Hospital, or STARC Program, whether paid or unpaid, including but not limited to employees, members of the medical, nursing, and other treatment staff, contract staff, students, and volunteers.

(g) STARC Program shall mean a secure treatment facility operated pursuant to Section 7.18 of the Mental Hygiene Law.

History

Adopted New York State Register September 28, 2022/Volume XLIV, Issue 39, eff. 9/8/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 557.5 Testing and Vaccination Requirements for Hospitals and STARC Programs

(a) Hospitals and STARC Programs shall require Staff to be Fully Vaccinated.

(b) New Staff shall not commence their duties until they have been Fully Vaccinated.

(c) A reasonable accommodation may be made for Staff who have a documented health condition that prevents them from complying with the vaccine requirements herein. When a reasonable accommodation is approved for a Staff member, they must comply with the following testing provisions.

(d) Staff who have been granted such a reasonable accommodation are required to undergo diagnostic screening testing. Employers and supervisors may choose either antigen or molecular tests, based upon the appropriateness to their setting, to satisfy this requirement. Staff must be tested at least once weekly. Any test used must either have Emergency Use Authorization by the U.S. Food and Drug Administration or be operating per the Laboratory Developed Test requirements of the U.S. Centers for Medicare and Medicaid Services.

(e) Any Staff who work in Hospitals or STARC Programs who do not comply with the provisions of this Part shall not be permitted to report to work.

(f) Staff for whom a positive test result is received must comply with Office and New York State Department of Health regulations and guidance applicable to those who receive a positive test result.

(g) Hospitals and STARC Programs shall maintain records of their compliance with the requirements of this Part. Upon request by the Office, Hospitals and STARC Programs shall verify the vaccination status of all Staff, and must provide such requested information to the Office. Each Hospital or STARC Program shall require Staff to produce documentation to show all vaccine administrations. Acceptable documentation of vaccination status shall consist of one of the following:

(1) a COVID 19 vaccination record card issued by the CDC or equivalent, including the name of the person vaccinated, date of birth, type of vaccine provided and date(s) of administration.

(2) documentation of COVID-19 vaccination from a health care provider; or

(3) a digital record such as the New York State Excelsior Pass that includes a QR code that when scanned displays the name of the person vaccinated, date of birth, type of vaccine provided, and date(s) of administration.

(h) All Staff who are not Fully Vaccinated, or for whom vaccine status is unknown or documentation is not provided, must be considered unvaccinated.

History

Adopted New York State Register September 28, 2022/Volume XLIV, Issue 39, eff. 9/8/2022

Part 573 Operating Certificate Issuance And Limitation

N.Y. Comp. Codes R. & Regs. Tit. 14 § 573.1 Issuance of operating certificate

(a) Applications for operating certificates shall be submitted on a form provided by the office which shall specify:

(1) identification of the governing body and its legal base;

(2) the class of operating certificate for which application is made; and

(3) identification of the facilities and programs to be operated.

(b) The applications shall be submitted with all documentary material required by the operating standards for the facilities proposed to be operated in the case of original applications or as required by revisions to documentary materials and written annual evaluations in the case of applications for renewal of operating certificates.

(c)

(1) For all providers for which an operating certificate from the Office of Mental Health is required, except for family care homes, initial operating certificates will be issued for a period not to exceed three years, as determined by the office. Subsequent operating certificates will be issued for periods of three years except that shorter periods may be prescribed for cause.

(2) In accordance with Mental Hygiene Law section 31.03, the operating certificate issued for a family care home shall be valid for two years.

(d) Operating certificates shall:

(1) certify each separate location covered by the operating certificate; and

(2) specify the class of the operating certificate and the programs authorized thereby to be operated.

(e)

(1) No application for the renewal of an operating certificate for a psychiatric inpatient unit of a hospital licensed pursuant to article 28 of the Public Health Law and Part 580 of this Title shall be accepted until the applicant hospital is granted approval to admit patients pursuant to section 9.39 of the Mental Hygiene Law, except that the commissioner shall waive this requirement for a period of two years upon his or her determination that:

(i) there is no public need for additional beds for emergency psychiatric admission in the subregional service area. In determining such need, the factors which the commissioner shall consider shall include, but not be limited to:

(a) the current and projected population characteristics of the service area, including the prevalence of mental illness in the population;

(b) the current patterns of utilization of psychiatric services and the service demands of the service area;

(d) acute bed needs of the service area as identified in the acute bed needs methodology set forth in the Office of Mental Health's five-year plan for mental health services required by section 5.07 (h) of the Mental Hygiene Law;

(iii) the hospital does not and reasonably could not provide the scope of services necessary to assure adequate and appropriate psychiatric care and treatment for patients in emergency situations;

(a) defines the specific area to be served;

(b) provides for sufficient beds for emergency psychiatric admissions to meet the public needs identified for the subregional service area pursuant to subparagraph (i) of this paragraph;

(d) projects the number of admissions that will occur at the hospitals covered under the proposal.

The commissioner shall also consider the way in which the proposed system would affect the availability of emergency psychiatric services in other service areas, and the ability of such areas to provide for sufficient beds for emergency psychiatric admissions to meet the projected public needs.

(2) No hospital without an onsite emergency room shall be required to accept patients in need of emergency observation, care and treatment. No application for the renewal of an operating certificate for psychiatric inpatient units of such hospitals shall be accepted until the hospital has agreed to accept referrals of involuntary psychiatric patients under an emergency admission system which has been approved by the commissioner, except the commissioner may waive this requirement for a period of two years pursuant to paragraph (1) of this subdivision.

(4) Prior to granting a waiver to a hospital, the commissioner shall consider the comments of the director of the local governmental unit of the specific subregional service area. The commissioner shall forward a copy of the waiver request to the director of the local governmental unit, who shall have 30 days within which to respond.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 573.2 Special requirements for eligibility for operating certificates applicable to business corporations

(a) No business corporation shall be eligible for issuance of an operating certificate unless the following requirements have been met as established by documents submitted to the commissioner:

(1) The corporate powers and purposes stated in the certificate of incorporation shall specify the ownership and operation, or operation, of a facility or facilities specifically named, the location or locations of which are specifically designated.

(2) The corporate powers and purposes as stated in the certificate of incorporation shall not include any powers or purposes which are not necessary to the operation of a facility as defined in section 72.3 of this Title.

(3) The location of the principal office of the corporation shall be the same as that of a facility which is to be operated by the corporation in the State of New York.

(4) No person shall own more than 10 percent of the shares of stock of the corporation or control more than 10 percent of the voting rights of the corporation unless prior written approval by the commissioner has been obtained.

(5) The corporation shall obtain prior written approval by the commissioner of all incorporators or directors of record as to their character and experience.

(b) An operating certificate issued to a business corporation shall be surrendered to the office at the time of any transfer of ownership of shares of stock or of control of voting rights of the corporation unless the following requirements have been met:

(1) both parties to the transfer shall be identified in writing to the commissioner;

(2) the number of shares of stock and votes and the percentage of outstanding shares of stock and votes included in the transfer are stipulated in writing to the commissioner;

(3) any party acquiring shares of stock or voting rights shall identify in writing to the commissioner the immediate source to him of any consideration of value exchanged for shares of stock or voting rights; and

(4) in the case of any transfer of stock or voting rights which is stipulated to be a gift, the relationship between the parties to the transfer shall be stated in writing to the commissioner.

(c) No business corporation shall be eligible to hold an operating certificate if it is owned in whole or in part by another corporation, a limited partnership, or a partnership any of the members of which are not natural persons.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 573.3 Denial of application for or limitation of initial operating certificate

The commissioner shall not deny any application or limit any initial operating certificate without giving the applicant an opportunity to be heard in accordance with Part 503 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 573.4 Revocation, cancellation, limitation or suspension of any operating certificate

The commissioner shall not revoke, cancel, limit or suspend any operating certificate without giving the party in interest notice of the proposed action and an opportunity to be heard in accordance with Part 503 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 573.5 Temporary suspension or limitation of any operating certificate

When the commissioner has temporarily suspended or limited an operating certificate for a period not in excess of 60 days as provided in section 31.16 (b) of the Mental Hygiene Law, the facility operator may request an evidentiary hearing to contest the validity of the emergency suspension or limitation in accordance with Part 503 of this Title.

Part 574 Standards Pertaining To Payment For Hospitals Licensed By The Office Of Mental Health

N.Y. Comp. Codes R. & Regs. Tit. 14 § 574.1 Background and intent

(a) The purpose of these regulations is to establish standards pertaining to payments made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided to patients of hospitals licensed by the Office of Mental Health in accordance with the provisions of Part 582 of this Title.

(b) In order to be eligible for payments pursuant to title 11 of article 5 of the Social Services Law, a hospital must comply with the requirements of the Mental Hygiene Law, Parts 574, 577 and 582 of this Title and applicable provisions of title XIX of the Social Security Act as identified in section 502.2(c) of this Title.

(c) The Medical Assistance Program in New York State is administered by the New York State Department of Health by and through local social services districts in cooperation with various State agencies, including the Office of Mental Health; or by the New York State Department of Health by and through various State agencies, including the Office of Mental Health.

(d) The standards for payment established by these regulations are intended to limit hospitals eligible for payment to those that meet State and Federal requirements.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 574.2 Legal base

(b) Sections 364 and 364-a of the Social Services Law gives the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities operated by it or subject to its supervision pursuant to the Mental Hygiene Law.

(c) Section 43.02 of the Mental Hygiene Law provides that payments under the Medical Assistance Program for services at facilities licensed by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Budget.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 574.3 Applicability

(a) These regulations apply to hospitals licensed pursuant to article 31 of the Mental Hygiene Law and issued operating certificates in accordance with Part 582 of this Title.

(b) These regulations apply to payments made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by a hospital licensed by the Office of Mental Health in accordance with the provisions of Part 582 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 574.4 Definitions

(a) Alternate level of care services shall mean services provided by a hospital to a patient for whom it has been determined that hospital services are not medically necessary, but that skilled nursing or health-related services are medically necessary, and are being provided by the hospital and are not otherwise available.

(b) Commissioner shall mean the Commissioner of Mental Health.

(c) Hospital shall mean a facility providing inpatient care or treatment of persons with mental illness which has been issued an operating certificate by the Office of Mental Health pursuant to article 31 of the Mental Hygiene Law and in accordance with Part 582 of this Title. For purposes of this Part, the term hospital shall not include hospitals licensed pursuant to article 28 of the Public Health Law, residential treatment facilities for children and youth issued an operating certificate in accordance with Part 584 of this Title and hospitals within the Office of Mental Health.

(d) Medical Assistance Program shall mean the program of medical assistance to needy persons authorized under title 11 of article 5 of the Social Services Law, and regulations, as identified in section 502.2(d) of this Title, promulgated thereunder and title XIX of the Social Security Act, as identified in section 502.2(c) of this Title and regulations promulgated thereunder.

(e) Patient day shall mean the unit of measure denoting lodging provided and services rendered to one patient between the census-taking hour on two successive days. A patient day is counted on the day of admission but not on the day of discharge. A patient day is counted when a patient is admitted as an inpatient with the expectation of remaining overnight but is discharged on the same day.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 574.5 Standards pertaining to eligibility for payment

(a) A hospital is eligible for payment under the Medical Assistance Program under the following conditions:

(1) The hospital has a valid operating certificate issued by the Office of Mental Health, in accordance with Part 582 of this Title.

(2) The hospital complies with applicable requirements of title XIX of the Social Security Act, as identified in section 502.2(c) of this Title and regulations, as identified in section 502.2(d) of this Title, promulgated thereunder.

(b) A hospital is eligible for payment for services provided to patients who have been determined to be eligible for the Medical Assistance Program.

(c) The hospital is eligible for payment for each patient day at the per diem rate established pursuant to the provisions of Part 577 of this Title.

(d)

(1) Payment for alternate level of care services. Payment for alternate level of care services will be made in accordance with subdivision (c) of this section, unless there is a significant excess of operational beds at the hospital or at hospitals in the Office of Mental Health region in which the hospital is located. If a significant excess exists in the hospital or in the region, payment for alternate level of care services will be made at the statewide average skilled nursing facility or health-related facility rate, as appropriate, weighted by total patient days, at the time the alternate level of care services are furnished.

(2) Significant excess of operational beds. A significant excess of operational beds exists at a hospital if the hospital's base year occupancy rate, excluding alternate level of care days, is less than 80 percent, as stated on the operating certificate issued by the Office of Mental Health. A significant excess of operational beds exists at hospitals in an Office of Mental Health region if the overall occupancy rate for hospitals in the region is less than 80 percent. The commissioner may determine that no excess exists if, within 30 days following notice to the hospital by the commissioner of the hospital's base year occupancy rate, the hospital demonstrates to the satisfaction of the commissioner:

(i) the occupancy rate for the year following the base year, excluding alternate level of care days, was not less than 80 percent of the certified bed capacity in that year;

(ii) the hospital has reduced or has applied to reduce its certified bed capacity by the number of beds necessary to reach an occupancy rate of 80 percent, excluding alternate level of care days, in the base year; or

(iii) the occupancy rate of 80 percent may be reached by reducing certified bed capacity by no more than three beds or one percent of total certified bed capacity.

The commissioner may determine that no excess exists if, within 30 days following the close of the calendar quarter during which the alternate level of care services were furnished, the hospital demonstrates to the satisfaction of the commissioner that the occupancy rate during that quarter, excluding alternate level of care days, was not less than 80 percent of the certified bed capacity in that quarter.

(3) Procedure for determining occupancy rates. The commissioner will notify each hospital of its base year occupancy rate at the time the hospital is notified of its certified rate in accordance with Part 577 of this Title. After the expiration of the 30-day period described in paragraph (2) of this subdivision, the commissioner will notify each hospital whether a significant excess of operational beds exists at the hospital and at hospitals in the Office of Mental Health region in which the hospital is located.

Part 575 Community Support Services For The Mentally Ill

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.1 Background and intent

(a) The purpose of the community support services program, is to provide comprehensive support services within the community setting for those individuals who are seriously and chronically mentally ill and living in the community.

(b) The purpose of these regulations is to establish the community support services program under the jurisdiction of the Commissioner of Mental Health.

(c) The purpose of these regulations is to establish standards and describe the eligibility criteria for the community support services program by defining the characteristics of seriously and chronically mentally ill individuals.

(d) These regulations reinforce the State and local partnership in the provision of community support services for seriously and chronically mentally ill individuals.

(e) These regulations do not establish an entitlement program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.2 Legal base

(b) Section 41.47 of the Mental Hygiene Law grants the Commissioner of Mental Health the power and responsibility to promulgate regulations to implement provisions of the community support services program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.3 Applicability

(a) These regulations apply to a local governmental unit which elects to participate in the community support services program.

(b) These regulations apply to a provider of services which has contracted with a local governmental unit to provide a community support service.

(c) These regulations apply to any provider of services which has a direct contract with the Office of Mental Health to provide a community support service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.4 Definitions

(a) Commissioner is the Commissioner of Mental Health.

(b) Community support services are those clinical, social, rehabilitative, related administrative and other mental health and support services which are provided within the community and which enhance community living skills while preventing the unnecessary hospitalization of the seriously and chronically mentally ill individual who is determined to be eligible for such services pursuant to section 575.6 of this Part.

(c) Community support services program is a comprehensive program of community support services established under the jurisdiction of the Commissioner of Mental Health, funded by the Office of Mental Health and administered through the local government plan. It is designed to provide core services and a case manager system as essential elements of an individual's service program for purposes of extending community tenure and improving the quality of life.

(d) Contract agency means a provider of services, other than a local governmental unit, which contracts with the Office of Mental Health to provide community support services.

(e) Core services means the ongoing management, coordination, and monitoring of the implementation of the community support services program within a defined geographical area as determined in the local government plan.

(f) Core service agency is a local governmental unit which receives community support services funding or a provider of services which has contracted with a local governmental unit to provide such core services.

(g) Designated adult home means an adult care facility, licensed by the Commissioner of Social Services pursuant to article 7 of the Social Services Law, which has been designated by the Commissioner of Mental Health as containing a significant number of seriously and chronically mentally ill individuals who are in need of community support services.

(h) Designated shelter for the homeless means a shelter for the homeless, licensed by the Commissioner of Social Services pursuant to article 7 of the Social Services Law, which has been designated by the Commissioner of Mental Health as containing a significant number of seriously and chronically mentally ill individuals who are in need of community support services.

(i) Designated single room occupancy residence means a single room occupancy, as defined in the Multiple Dwelling Law or the Multiple Residence Law, which has been designated by the Commissioner of Mental Health as containing a significant number of seriously and chronically mentally ill individuals who are in need of community support services.

(j) Direct contract means a contract between the Office of Mental Health and a provider of services other than a local governmental unit. Such contract shall require the provision of specified units of community support services, administrative services or management/monitoring services to be provided by the provider of services which shall be funded by the Office of Mental Health.

(k) Director means the director of community services, who is the chief executive officer of the local governmental unit, by whatever title known.

(l) Functionally disabled means a severe, chronic disability which is caused by a medically determined mental illness, as evidenced by a principal psychiatric diagnosis, which is likely to continue for a prolonged period, and which results in substantial functional limitations in three or more of the following areas: self-care, social functioning, activities of daily living, economic self-sufficiency, self-direction, and ability to concentrate.

(m) Local government is a county, except a county within the City of New York, and the City of New York.

(n) Local government plan is the local services plan, as defined in section 41.18 of the Mental Hygiene Law, or the unified services plan, as defined in sections 41.19, 41.21 and 41.23 of the Mental Hygiene Law. Such plan outlines current local or unified services and contains a comprehensive proposal for the annual, intermediate and long range plans and expenditures by the local governmental unit and by providers of services pursuant to contracts with the local governmental unit.

(o) Local governmental unit means the unit of local government given authority in accordance with article 41 of the Mental Hygiene Law to provide services in accordance with the local government plan for the mentally ill.

(p) Nurse is an individual who is currently licensed as a registered professional nurse by the New York State Education Department.

(q) Provider of services means a local governmental unit, voluntary agency, proprietary agency, association or corporation which provides services for the community support services eligible population.

(r) Psychiatrist is an individual currently licensed as a physician by the New York State Education Department, who is a diplomate of the American Board of Psychiatry and Neurology or is eligible to be certified by that board, or is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board.

(s) Psychologist is an individual who is currently licensed as a psychologist by the New York State Education Department.

(t) Qualified residence means a community residence, residential care center for adults, family care home, or residential treatment facility for children and youth which is licensed or operated by the Office of Mental Health.

(u) Social worker is an individual who is either currently licensed as a certified social worker by the New York State Education Department or has a master's degree in social work from a program approved by the New York State Education Department.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.5 Participation in the community support services program

(a) Participation by a local governmental unit in the community support services program shall be contingent upon an affirmative election by the local governmental unit prior to May 1, 1987 or May 1st of any year. Such participation shall take effect in the following local fiscal year.

(b) A local governmental unit which elects to participate in the community support services program shall have responsibility for the coordination of the community support services program within its defined geographical area in accordance with the local government plan. Such responsibilities shall include:

(1) incorporating the community support services program into the local government plan pursuant to article 41 of the Mental Hygiene Law;

(2) providing community support services and core services to eligible individuals directly or through contract with a provider of services;

(3) providing community support services and core services to eligible individuals, who were formerly served through direct contracts prior to election by the local governmental unit to participate in the community support services program. Such provision of community support services shall begin with the local fiscal year following the election to participate in the community support services program; except as provided in subdivision (a) of this section; and

(4) assuring that a provider of services which has satisfactorily provided community support services pursuant to the regulations of the commissioner in the last complete local fiscal year preceding April 1, 1987 shall have the opportunity to continue to provide the same level of such service for a period of at least two local fiscal years, beginning with the initial year of participation by the local governmental unit in the community support services program.

(c) A local governmental unit which elects to participate in the community support services program shall assure the provision of community support services such as: case management services, advocacy services, clinic treatment, day treatment, day training, continuing treatment, homemaker services, housekeeping services, on-site rehabilitation services, sheltered workshop and other vocational programs, psychosocial clubs, neighborhood drop-in centers, transportation services, nonresidential crisis services, outreach services, preadmission screening, screening and prevention, consultation and education and other services approved by the commissioner in accordance with the local government plan.

(d) A local governmental unit may elect to participate in the community support services program in conjunction with one or more other local governmental units.

(e) A local governmental unit which does not elect to participate in the community support services program prior to May 1st of any year for all subsequent years shall be responsible for incorporating the community support services program into the local government plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.6 Standards pertaining to eligibility

(a) Eligibility of an individual to receive services of the community support services program shall be certified by a nurse, psychiatrist, psychologist or social worker as defined in section 575.4 of this Part.

(b) Eligibility of an individual to receive services of the community support services program shall be determined in accordance with the following criteria:

(1) the individual is at least 18 years of age; and

(2) is functionally disabled as a result of mental illness as defined in section 575.4 of this Part; and

(3) is in serious jeopardy to remain in the community without the provision of community support services; and

(4) meets one of the permanent criteria of subdivision (c) of this section; or

(5) meets one of the categorical criteria of subdivision (d) of this section.

(c) Permanent eligibility to receive services of the community support services program shall be determined when an individual meets at least one of the following criteria:

(1) one consecutive six-month stay in an inpatient psychiatric facility. For purposes of calculating six consecutive months, the following time periods shall not be considered an interruption of the continuous period:

(i) discharge and return to inpatient status within 48 hours;

(ii) placement in a family care home and return to an inpatient unit within 30 days;

(iii) return from leave without consent or escape within 72 hours; or

(iv) a maximum of 30 days of leave status within the six months of continuous inpatient hospitalization.

(2) Two psychiatric inpatient stays of any length during the preceding two years in an inpatient psychiatric facility. For purposes of counting two admissions of any length within the past two years, the following criteria shall apply:

(i) the individual was an inpatient on the date 24 months prior to receiving community support services. Such admission associated with that inpatient stay shall be counted as one of the two needed to establish eligibility; and

(ii) the individual returns to an inpatient psychiatric facility from a family care home after 30 days from the initial date of placement, excluding returns to medical/-surgical units. Such return to an inpatient psychiatric facility shall be counted as one admission;

(3) three or more admissions to an Office of Mental Health operated or licensed outpatient program or a forensic satellite unit operated by the Office of Mental Health within the preceding 18 months; or three or more contacts with crisis or emergency mental health services within the preceding 18 months; or a combination of three or more admissions or contacts within the preceding 18 months. For purposes of counting three or more admissions or contacts, the following criteria shall apply:

(i) each admission or contact shall be a result of a separate episode or acute symptomatology of a mental illness;

(ii) no more than two admissions or two contacts or a combination of one admission and one contact shall be considered within any three-month period;

(iii) if the individual were receiving outpatient services on the date 18 months prior to receiving community support services, the admission associated with that commencement of services may be counted as one of the three admissions necessary to establish eligibility;

(iv) if contact with crisis or emergency mental health services results in an admission to a certified mental health program, the contact and admission shall be counted as only one of the three necessary to establish eligibility;

(v) for purposes of this section, the term admission shall mean a provider of services has conducted a face-to-face evaluation and assessment of the need for services of an individual who is not on its active caseload, that the provider of services has accepted such individual for treatment, and that a treatment plan has been developed for such individual in accordance with Part 585 of this Title; and

(vi) for purposes of this section, the term contact shall mean the receipt of crisis or emergency services which must include a face-to-face evaluation, an assessment of the need for services, and a referral to a program certified in accordance with Part 585 of this Title for appropriate mental health services;

(4) receipt of Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits. Such individuals must have been initially determined to be eligible for such benefits prior to 65 years of age;

(5) a six-month consecutive residency in a qualified residence;

(6) a six-month consecutive residency in a designated adult home;

(7) receipt of services from on outpatient program licensed or operated by the Office of Mental Health by an individual whose eligibility has been waived. Such individual shall have participated in the program at least once in each quarter of the immediate past 12 months, such participation beginning April 1, 1987; and

(8) an individual determined to be eligible for community support services based upon a prior history of psychiatric inpatient hospitalization during the immediate past 12 months. Such individuals may be eligible for permanent status pursuant to this subdivision beginning April 1, 1988.

(d) Categorical eligibility to receive services of the community support services program shall be determined when an individual meets at least one of the following criteria:

(1) homeless;

(2) homeless and living in designated shelter;

(3) a resident of a designated adult home for less than six months;

(4) a resident of a qualified residence for less than six months;

(5) a resident of a designated single room occupancy residence;

(6) an inpatient of a State-operated psychiatric center scheduled for placement within 90 days to an Office of Mental Health licensed or operated community residence, family care home or residential care center for adults shall be eligible for comunity support services excepting those mental health services, other than day training, certified by Part 585 of this Title, in accordance with the following:

(i) the individual shall be identified by the State psychiatric hospital, as documented in his or her treatment plan, as appropriate for and scheduled to enter a community residence, family care home or residential care center for adults within 90 days;

(ii) the individual shall be identified by the community residence, family care home or the residential care center for adults as being scheduled to enter such facility within 90 days;

(iii) the individual shall have this categorical status extended for an additional 90 days if unexpected delays occur with the placement. Any such extensions shall be subject to prior approval by the commissioner or his designee.

(e) An individual who qualifies for community support services under the categorical eligibility criteria of this section shall be considered eligible for community support services for the duration of their participation in the community support services program.

(f) An individual who qualifies for community support services under the categorical eligibility criteria of this section shall continue to be eligible for community support services for a period of one year after receiving such services.

(g) An individual who is homeless, a resident of a designated shelter for the homeless, or a resident of a designated adult home shall be eligible for on-site rehabilitative and outreach community support services.

(1) Such individual shall be eligible for these community support services without an eligibility certification or determination.

(2) Eligibility certification or determination of such individuals shall continue to be actively pursued and documented by the provider of services when clinically appropriate.

(h) Community support services will be made available to all eligible individuals as defined in this section without discrimination because of age, creed, color, national origin, sex, disability, marital status or arrest or criminal accusation not presently pending against that individual which was followed by a termination of that criminal action or proceeding in favor of the individual, as defined in subdivision two of section 160.50 of the Criminal Procedure Law, unless such discrimination is in fact a segregation based on legitimate clinical needs and concerns and not a complete denial of the provision of services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.7 Standards pertaining to waiver of eligibility

(a) Eligibility criteria may be waived for an individual who is determined to be eligible pursuant to section 575.6(b) of this Part, but who does not qualify for community support services under the permanent eligibility criteria of section 575.6(c) of this Part or the categorical eligibility criteria of section 575.6(d) of this Part.

(b) Waivers authorized pursuant to this section shall be permitted if it is determined by a nurse, psychiatrist, psychologist or social worker, as defined in section 575.4 of this Part, that exclusion from the community support services program shall result in:

(1) admission to an inpatient psychiatric facility;

(2) inappropriate removal of the individual from his or her current residential setting; or

(3) a marked decline in the individual's mental or physical condition.

(c) No more than 10 percent of the individuals receiving community support services from a core service agency or a provider of services which directly contracts with the Office of Mental Health shall be otherwise ineligible individuals for whom eligibility has been waived.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.8 Responsibilities of the office of mental health for the provision of community support services

(a) The Office of Mental Health shall be responsible for the maintenance and development of the community support services program, as appropriate, in areas where the local governmental unit has not elected to participate in the community support services program.

(b) The Office of Mental Health shall be responsible for the continuation of direct contracts with providers of services, where appropriate, when the local governmental unit has not elected to participate in the community support services program.

(c) Prior to entering into contracts for the provision of community support services with providers of services or local governmental units, the Office of Mental Health and the local governmental unit shall consider the following:

(1) the service needs of seriously and chronically mentally ill individuals in the geographical area in which the community support services program is located;

(2) the capacity of the program to meet identified service needs;

(3) the current availability of services for seriously and chronically mentally ill individuals in the area, including the special needs of ethnic minorities and non-English speaking mentally ill individuals;

(4) the extent to which community support services authorized by the contract will be integrated with other available services in the area to more effectively maintain seriously and chronically mentally ill individuals in the community;

(5) the availability of resources for such services;

(6) the extent to which the community support services authorized by the contract are consistent with and integrated with the local government plan of the geographical area to be served; and

(7) the extent to which such contracts conform with the minimum contractual requirements as established by the commissioner.

(d) The Office of Mental Health shall be responsible for entering into direct contracts with the providers or services other than the local governmental unit in areas in which the local governmental unit has elected to participate in the community support services program, after the approval of the local government plan and the allocation of State aid, when the commissioner has determined that:

(1) such direct contracts are necessary to assure that additional community support services are available for eligible individuals; and

(2) such direct contracts are necessary for eligible individuals whose mental health needs have not been sufficiently addressed.

(e) The commissioner shall be responsible for notifying the director of the local governmental unit in writing of the decision to contract directly with a provider of services for community support services.

(f) The director of the local governmental unit shall have an opportunity to appeal the need for a direct contract between the Office of Mental Health and a provider of services. Such appeals shall be informal in nature and the rules of evidence shall not apply.

(g) The appeals process shall be in accordance with the following:

(1) Upon receipt of notification of the intent of the Office of Mental Health to contract directly with a provider of services, the director of the local governmental unit shall have 30 days to appeal in writing the decision to enter into a direct contract.

(2) The director of the local governmental unit must demonstrate that current services within the jurisdiction of the local governmental unit are adequate to meet the needs of the community support services eligible population, including the needs to be met by the proposed direct contract.

(3) Upon receipt of the written appeal from the director of the local governmental unit, the commissioner shall have 30 days in which to notify the director in writing that the appeal is approved or disapproved.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 575.9 Standards pertaining to recordkeeping

(a) Providers of services shall maintain records for verification of all eligible individuals receiving community support services, including individuals who have an eligibility waiver pursuant to section 575.7 of this Part, in accordance with reporting forms as prescribed by the Office of Mental Health.

(b) The records of all eligible individuals receiving community support services, including individuals who have an eligibility waiver pursuant to section 575.7 of this Part, shall be confidential and access shall be governed by the requirements of section 33.13 of the Mental Hygiene Law.

(c) Providers of services shall maintain records for verification of eligibility. Such records shall include but not be limited to:

(1) hospitalization history;

(2) psychiatric diagnosis;

(3) outpatient history;

(4) functional disability assessment;

(5) residential history or current residence for both permanent or categorical eligibility as applicable; and

(6) record of receipt of supplemental security income or social security disability insurance benefits.

(d) Providers of services shall maintain eligibility forms for an individual who is to be served where information is incomplete or where a determination of eligibility is not possible pursuant to section 575.6(g) of this Part. Such eligibility forms shall indicate that no determination of eligibility was made.

(e) Providers of services shall maintain separate records for individuals who receive community support services without a determination of eligibility pursuant to section 575.6(g) of this Part. Such records shall include but not be limited to:

(1) the type of service delivered;

(2) the date when a service is delivered;

(3) the location where a service is delivered; and

(4) the total number of units of service delivered.

(f) Providers of services shall maintain records of all requests for waivers of eligibility criteria.

(g) Core service agencies and direct contract agencies shall maintain a centralized and current list of all eligible individuals and those individuals whose eligibility has been waived and who are receiving community support services.

(h) Such statistical information shall be prepared and maintained as may be necessary for the effective operation of the community support services program and as may be required by the Office of Mental Health.

(i) Statistical information shall be reported to the Office of Mental Health in a manner and within time limits specified by the Office of Mental Health.

(j) Statistical reporting shall be the responsibility of an individual whose name and title shall be made known to the Office of Mental Health.

Part 576 Standards Pertaining To Payment For Residential Treatment Facilities For Children And Youth

N.Y. Comp. Codes R. & Regs. Tit. 14 § 576.1 Background and intent

(a) The purpose of these regulations is to establish standards pertaining to payments made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided to residents of residential treatment facilities for children and youth licensed by the Office of Mental Health in accordance with the provisions of Part 584 of this Title.

(b) In order to be eligible for payments pursuant to title 11 of article 5 of the Social Services Law, a residential treatment facility for children and youth must comply with the requirements of the Mental Hygiene Law, this Title, 18 NYCRR, and title XIX of the Social Security Act as identified in section 502.2(c) of this Title, applicable to inpatient psychiatric services for individuals under age 21.

(c) The Medical Assistance Program in New York State is administered by the New York State Department of Social Services by and through local social services districts in cooperation with various State agencies including the Office of Mental Health; and by the New York State Department of Social Services by and through various State agencies, including the Office of Mental Health.

(d) The standards for payment established by these regulations are intended to limit residential treatment facilities for children and youth eligible for payment to those that meet State and Federal requirements and to limit days eligible for payment to those on which services are rendered or for which a bed has been appropriately reserved.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 576.2 Legal base

N.Y. Comp. Codes R. & Regs. Tit. 14 § 576.3 Applicability

(a) These regulations apply to residential treatment facilities for children and youth licensed pursuant to article 31 of the Mental Hygiene Law and issued operating certificates in accordance with Part 584 of this Title.

(b) These regulations apply to payments made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by a residential treatment facility for children and youth licensed by the Office of Mental Health in accordance with the provisions of Part 584 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 576.4 Definitions

(a) Commissioner shall mean the Commissioner of Mental Health.

(b) Medical assistance program shall mean the program of medical assistance to needy persons authorized under title 11 of article 5 of the Social Services Law and regulations promulgated thereunder and title XIX of the Social Security Act, as identified in section 502.2(c) of this Title and regulations, as identified in section 502.2(d) of this Title, promulgated thereunder.

(c) Patient day shall mean the unit of measure denoting lodging provided and services rendered to one resident between the census-taking hour on two successive days. A patient day is counted on the day of admission but not on the day of discharge. A patient day is counted when a resident is admitted with the expectation of remaining overnight but is discharged on the same day. A patient day is counted on the day a resident returns from temporary hospitalization or leave of absence for a therapy day, but not on the day a resident departs.

(d) Reserved bed day shall mean the unit of measure between the census-taking hour on two successive days during which a bed is reserved for a resident who is temporarily hospitalized or is on leave of absence for a therapy day in accordance with the provisions of section 576.6 of this Part. A reserved bed day is counted on the day a resident departs for temporary hospitalization or leave of absence for a therapy day but not on the day a resident returns. A reserved bed day is counted on the day telephone notification is received of circumstances requiring termination of the bed reservation but not on any subsequent days. In no event may a reserved bed day be counted on a day for which a patient day is counted.

(e) Residential treatment facility shall mean an inpatient psychiatric facility which provides active treatment under the direction of a physician for children who are under 21 years of age and which is issued an operating certificate pursuant to Part 584 of this Title.

(f) A therapy day is a day when a resident is not receiving residential treatment facility services on-site between the census-taking hour on two successive days due to being away from the residential treatment facility to spend time with family or friends in accordance with the implementation of the resident's individual treatment plan.

History

Amended New York State Register August 18, 2021/Volume XLIII, Issue 33, eff. 8/4/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 576.5 Standards pertaining to eligibility for payment

(a) A residential treatment facility is eligible for payment under the Medical Assistance Program under the following conditions:

(1) The residential treatment facility has a valid operating certificate issued by the Office of Mental Health, in accordance with Part 584 of this Title.

(2) The residential treatment facility complies with applicable requirements of title XIX of the Social Security Act and regulations promulgated thereunder.

(3) The residential treatment facility complies with applicable requirements of title 11 of article 5 of the Social Services Law and regulations promulgated thereunder.

(b) A residential treatment facility is eligible for payment for services provided to residents under the following conditions:

(1) The resident has been determined to be eligible for the Medical Assistance Program.

(2) The resident has been authorized for admission to the residential treatment facility in accordance with Part 584 of this Title.

(d) The residential treatment facility is eligible for payment at the per diem rate established pursuant to the provisions of Part 578 of this Title.

(e) The residential treatment facility is the only provider of services eligible for payment under the Medical Assistance Program for services provided to a resident of the residential treatment facility including a resident for whom a bed has been reserved except as follows:

(1) Hospitals other than residential treatment facilities are eligible for payment for inpatient services.

(2) Hospitals other than residential treatment facilities are eligible for payment for emergency services and for outpatient services provided as an alternative to hospitalization for medical care other than psychiatric care.

(3) Vendors who supply prosthetic or orthotic appliances and devices including hearing aids are eligible for payment for such appliances or devices in accordance with the established requirements of the Medical Assistance Program.

History

Amended New York State Register August 18, 2021/Volume XLIII, Issue 33, eff. 8/4/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 576.6 Standards pertaining to reserved bed days

(a) The purpose of reserving a bed and making payment for the days for which a bed is reserved is to make provision for the continued availability of services in the same residential treatment facility for residents who are temporarily hospitalized or who are on leave of absence for a therapy day. A bed may be reserved only for a resident who has been residing in the residential treatment facility for at least 15 consecutive days since the resident's current initial admission to the residential treatment facility.

(1) A bed may be reserved for a resident who is temporarily hospitalized for medical or psychiatric care if the following conditions are met:

(i) The resident is admitted to a hospital, other than a residential treatment facility, which is currently licensed or otherwise authorized to operate pursuant to the laws of the jurisdiction in which the hospital is located.

(ii) The resident is expected, on the day of admission to the hospital, to return to the residential treatment facility in no more than 15 calendar days.

(iii) The residential treatment facility notifies the hospital by telephone, and confirms in writing in accordance with procedures prescribed by the Office of Mental Health, that the resident's bed is being reserved and that the hospital must notify the residential treatment facility during the period that the bed is being reserved of any change in the resident's condition which affects the date of discharge.

(a) On or before the morning of the fourth day of hospital care, the hospital shall notify the residential treatment facility of the resident's anticipated discharge date.

(b) If following the 3rd day and before the 16th day of temporary hospitalization, it becomes necessary to adjust the planned discharge date as a result of either a change in the resident's condition or the availability of additional clinical information, the hospital shall immediately advise the residential treatment facility by telephone.

(iv) The bed reservation shall be extended under the following conditions:

(a) For a resident temporarily hospitalized for medical care the bed reservation shall be extended for up to five additional days, if granting such extension will permit the resident to return to the residential treatment facility within 20 days of the date of admission to the hospital.

(b) For a resident temporarily hospitalized for psychiatric care the bed reservation shall be extended for up to 15 additional days, if granting such extension will permit the resident to return to the residential treatment facility within 30 days of the date of admission to the hospital.

(v) Payment for reserved bed days for temporary hospitalization shall be requested as follows:

(a) When reserved bed days do not exceed 15 days for any single hospital stay and the resident returns immediately to the residential treatment facility payment may be requested without prior authorization.

(b) When a bed reservation has been extended in accordance with clause (iv) (a) or (b) of this paragraph, and the resident returns immediately to the residential treatment facility, the residential treatment facility must request prior authorization from the Office of Mental Health to request payment for the actual period the bed was reserved.

(vi) The bed reservation shall be terminated under the following conditions:

(a) If the planned discharge date determined during the first 3 days of hospitalization is more than 15 days from the day of admission to the hospital, the bed reservation shall be terminated.

(b) If the planned discharge date determined following the third day of temporary hospitalization is more than 15 days from the day of admission to the hospital or, more than 20 days for medical care or more than 30 days for psychiatric care for bed reservations extended in accordance with clause (iv)(a) or (b) of this paragraph, the bed reservation shall be terminated.

(c) If the resident is discharged from the hospital and does not return to the residential treatment facility, the bed reservation shall be terminated on the day the resident is discharged from the hospital.

(vii) All of the above provisions in this paragraph are subject to a vacancy rate of no more than 5% or 2 vacant beds, whichever is greater, on the first day of resident's hospitalization from either the residential treatment facility or the distinct unit of the residential treatment facility, to which the resident is expected to return. A distinct unit will require specific admission criteria listed on the residential treatment facility's operating certificate but will not require a separate reimbursement rate for the unit. When computing a vacancy rate, the RTF must disregard beds that have been reserved for other patients.

(2) A bed may be reserved for a resident who is on a leave of absence for a therapy day if the following conditions are met:

(i) The residential treatment facility has written policies and procedures governing leaves of absence for therapy days. Such policies and procedures are subject to the approval of the Office of Mental Health.

(ii) The leave of absence for a therapy day is in conformance with such policies and procedures.

(iii) The leave of absence for a therapy day is provided for in the resident's individual treatment plan.

(iv) The number of days for which a bed is reserved for any individual whether she/he is a resident in one or more residential treatment facility does not exceed 75 days in any 12-month period.

(v) The resident is not admitted to a hospital, other medical facility or another residential treatment facility.

(vi) The resident returns from the leave of absence for a therapy day and is not discharged within 24 hours of return.

(3) A bed may not be reserved as a direct result of a labor dispute occurring within the residential treatment facility.

(b) Certain requirements of this section may be waived by the Office of Mental Health.

(1) A request for a waiver must be submitted to the office and must justify the need for waiver and include such other information or documentation as the Office of Mental Health may require.

(2) The Office of Mental Health may grant a request for waiver of a requirement if it determines that the request is appropriate and reasonable and that the waiver of the request is in the best interests of the resident and the residential treatment facility.

(3) The circumstances in which waiver of a requirement may be requested are as follows:

(i) The requirement that a bed may be reserved only for a resident who has been residing in the residential treatment facility for at least 15 consecutive days (see subdivision (a) of this section).

(ii) The disallowance of a bed reservation for a resident who is discharged while on a leave of absence for a therapy day or within 24 hours of return may be waived if the discharge was not anticipated on the day of departure from the residential treatment facility and at the time of discharge the resident is determined to no longer be in need of residential treatment facility services (see subparagraph (a)(2)(vii) of this section).

(c) Special limits, subject to the approval of the State Commissioner of Social Services, may be established on an individual basis, based on the recommendation of the Office of Mental Health . The circumstances in which the application of special limits may be requested are as follows:

(1) The limit of 20 calendar days for a resident who is temporarily hospitalized for medical care may be extended if such extension is expected to permit the resident to return to the residential treatment facility (see clause [a][1][iv][a ] of this section).

(2) The limit of 30 calendar days for a resident who is temporarily hospitalized for psychiatric care may be extended if such extension is expected to permit the resident to return to the residential treatment facility (see clause [a][1][iv][ b] of this section).

(d) The Commissioner of Mental Health may waive any of the standards pertaining to reserved bed cays in individual cases under special conditions except those standards requiring the approval of the Commissioner of Social Services as provided for in subdivision (c) of this section.

History

Amended New York State Register August 18, 2021/Volume XLIII, Issue 33, eff. 8/4/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 576.7 Documentation requirements for reserved bed days

(a) The residential treatment facility shall maintain a register of each resident who is absent from the residential treatment facility for 24 hours beyond the normal census-taking hour. Such register shall include, at a minimum, the resident's name, the reason for the absence and the final disposition of the absence.

(b) The temporary hospitalization or leave of absence for a therapy day shall be documented in the case record. At a minimum, progress notes shall be written describing the reason for the temporary hospitalization or leave of absence for a therapy day; the duration; any significant events that occurred; and the effects, if any, on the resident's condition or course of treatment.

(c) The residential treatment facility shall document, in accordance with procedures prescribed by the Office of Mental Health all actions required to demonstrate compliance with the requirements of this Part, including telephone notification and correspondence with hospitals, requests for extensions and approvals of extensions. Such documentation shall be retained by the residential treatment facility.

History

Amended New York State Register August 18, 2021/Volume XLIII, Issue 33, eff. 8/4/2021

Part 577 Rates Of Reimbursement-hospitals Licensed By The Office Of Mental Health

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.1 Background and intent

(a) The purpose of this Part is to establish standards and methods for determining rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by hospitals licensed by the Office of Mental Health, other than hospitals licensed pursuant to article 28 of the Public Health Law and issued an operating certificate in accordance with Part 580 of this Title, residential treatment facilities for children and youth issued an operating certificate in accordance with Part 584 of this Title and hospitals within the Office of Mental Health.

(b) The rates of payment determined under the standards and methods established by this Part are intended to be reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated hospitals in order to provide care and services in conformity with applicable State and Federal law, regulations and quality and safety standards.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.2 Legal base

Sections 7.09 and 43.02 of the Mental Hygiene Law grant the commissioner the power and responsibility to adopt regulations that are necessary and proper to implement matters under his/her jurisdiction and to establish standards and methods for determining rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by facilities, including hospitals, licensed by the Office of Mental Health pursuant to article 31 of the Mental Hygiene Law.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.3 Applicability

(a) These regulations apply to any hospital licensed pursuant to article 31 of the Mental Hygiene Law and issued an operating certificate in accordance with Part 582 of this Title.

(b) These regulations establish rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by hospitals, as defined herein. All payments by such agencies shall be at rates certified by the commissioner and approved by the Director of the Budget in accordance with section 577.8 of this Part.

(c) These regulations do not apply to hospitals licensed pursuant to article 28 of the Public Health Law and issued an operating certificate in accordance with Part 580 of this Title, residential treatment facilities for children and youth issued an operating certificate in accordance with Part 584 of this Title, and hospitals within the Office of Mental Health.

(d) In the event that the State cannot provide assurances satisfactory to the secretary of the Department of Health and Human Services that the rates of payment comply with the Medicare upper limit requirement, such rates of payment shall be adjusted proportionally as necessary to meet Federal requirements for securing Federal financial participation.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.4 Definitions

(a) Allowable costs shall mean costs incurred by a hospital which are eligible for payment by government agencies in accordance with title 11 of article 5 of the Social Services Law. To be allowable, costs must be reasonable and must relate to patient care. Allowable costs shall not include costs for services which have not been approved by the commissioner.

(b) Commissioner shall mean the Commissioner of Mental Health.

(c) Hospital shall mean a facility providing inpatient care or treatment of the mentally ill which has been issued an operating certificate by the Office of Mental Health pursuant to article 31 of the Mental Hygiene Law and in accordance with Part 582 of this Title. New hospital shall mean a facility providing inpatient care for the treatment of the mentally ill, pursuant to this subdivision, which has no previous cost experience or operating experience. For purposes of this Part, the term hospital shall not include hospitals licensed pursuant to article 28 of the Public Health Law, residential treatment facilities for children and youth issued an operating certificate in accordance with Part 584 of this Title, and hospitals within the Office of Mental Health.

(d) Hospital fiscal year shall mean the 12-month period between settlements by the hospital of its financial accounts. Effective January 1, 1993, the hospital fiscal year shall mean the 12-month period January through December.

(e) Medicare program shall mean the Federal program of health insurance for the aged and disabled established by title XVIII of the Social Security Act, as identified in section 502.2(b) of this Title, and regulations, as identified in section 502.2(d) of this Title, promulgated thereunder.

(f) Patient day shall mean the unit of measure denoting lodging provided and services rendered to one patient between the census-taking hours on two successive days. A patient day is counted on the day of admission but not on the day of discharge. A patient day is counted when a patient is admitted as an inpatient, with the expectation of remaining overnight, but is discharged on the same day.

(g) Rate year shall mean the 12-month period during which a rate established in accordance with section 577.7 of this Part is in effect.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.5 Financial reports

(a) Each hospital shall maintain records, and shall prepare and submit to the commissioner financial and statistical reports in accordance with the requirements of the commissioner.

(b) All reports required to be prepared and submitted to the commissioner:

(1) shall be prepared in accordance with generally accepted accounting principles, unless otherwise required by the commissioner;

(2) shall be certified by an officer or administrator of the hospital; and

(3) shall be subject to audit pursuant to section 577.6 of this Part.

(c) Reports required to be submitted by subdivision (a) of this section shall be submitted within 120 days after the close of the hospital fiscal year.

(d) If a hospital fails to file the required reports on the date such reports are due, or fails to file corrected or additional reports within 30 days after notification by the commissioner that reports filed by the hospital were inaccurate, incomplete or incorrect, the commissioner may withhold payments to the hospital for a period beginning on the first day of the calendar month in which the required reports were due and continuing until the last day of the calendar month in which the required reports are filed.

(e) Each new hospital which has no previous cost experience or operating experience shall prepare and submit to the commissioner financial and statistical information in accordance with the requirements of the commissioner. Such reports shall include:

(1) A budget report is required to be prepared and submitted to the commissioner. Such report shall include:

(i) a detailed financial plan, revenues and expenses and if requested by the commissioner, a line item budget with regard to staffing, personnel and detailed nonpersonal service costs including capital; and

(ii) a detailed phase-in plan of routine and ancillary services, staffing levels and utilization by major program areas.

(2) Such budget report shall be compiled and submitted 90 days prior to the issuance of an operating certificate and shall cover the first 12 months of operation, unless otherwise specified by the commissioner.

(f) If information contained in reports filed with the commissioner is inaccurate, incomplete or incorrect, the hospital shall immediately file with the commissioner corrected reports which comply with the requirements of subdivision (b) of this section.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.6 Audits

(a) Each hospital shall maintain the statistical and financial records which formed the basis of the reports submitted to the commissioner for six years from the date on which the reports were submitted to the commissioner, or for such longer period as may be required under Federal law.

(b) All such records shall be subject to audit for a period of six years from the later of the date on which all required reports were filed with the commissioner or the date on which such reports were due.

(c) The commissioner may enter into agreements with the Department of Health or other organizations or other agencies having audit responsibilities to audit the financial and statistical records of hospitals. The conduct of such audits by the Department of Health shall be done in accordance with procedures as set forth in applicable regulations of the Department of Health and shall be subject to any fees that may be set for the purpose of funding such audits as may be established pursuant to said regulations. Audits of Medicaid by the Office of Mental Health shall also be conducted in accordance with procedures as set forth in applicable Department of Health regulations or as set forth in agreement(s) between the Office of Mental Health and the Department of Health. All other audits shall be done in accordance with this Part.

(d) Audits which are conducted by the Office of Mental Health, or by its designee, other than audits conducted by the Department of Health pursuant to subdivision (c) of this section, shall be conducted in accordance with Part 552 of this Title and the following procedures:

(1) In addition to the draft audit report issued in accordance with section 552.6(a) of this Title a notice of the proposed rate revision shall be sent to the hospital.

(2) In addition to the provider's response to the final audit report required in section 552.7(e) of this Title, proposed rate revisions resulting from the implementation of audit findings shall be final unless within 45 days of receipt of the proposed rate revision, the hospital requests a hearing on factual issues. Requests for hearings, and the conduct of such hearings, shall be pursuant to Part 503 of this Title.

(3) Revisions to rates determined in accordance with the provisions of this paragraph shall be retroactive to the rate year covered by the audit. Any resulting overpayment shall be satisfied by either retroactive adjustments of the provisional rate paid, based on the period audited, or prospective adjustment of the current certified rate at the discretion of the commissioner.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.7 Rates

(a) Payment rates shall be established on a prospective basis effective January 1, 1992 and each January 1st thereafter, except that the rate of payment effective January 1, 2012 through December 31, 2012, and January 1, 2013 through December 31, 2013, shall be a continuance of the rate of payment effective December 31, 2011, and shall be provisional pending the completion of an audit in accordance with section 577.6 of this Part.

(b) Payment rates are computed on a per diem basis by dividing allowable costs by allowable patient days. Allowable patient days shall not exceed a maximum utilization of 98 percent of certified capacity. The allowable costs and patient days shall include the cost of psychiatric inpatient and related ancillary services, and as applicable, the cost of alcoholism inpatient and related ancillary services.

(c) Allowable costs are determined from hospital cost reports, as defined in section 577.5 of this Part, subject to the following priority of definitions of allowable cost:

(1) this Part;

(2) allowable costs under Federal Medical Assistance Program;

(3) allowable cost under the Medicare Program;

(4) generally accepted accounting principles; and

(5) as determined by audit in accordance with section 577.6 of this Part.

(d) For any rate year, operating and capital costs are determined from the allowable costs in the base year. The base year is the year two years prior to the rate year.

(e) Operating costs from the base year are subject to a cost limitation. The limitation is the allowable costs one year prior to the base year, increased by inflation for one year.

(1) Allowable operating costs in the rate year are calculated by choosing the lower of the base year cost computed on a per diem basis or the limitation cost computed on a per diem basis, and trending this amount forward two years by the inflation factor, except for the rate period effective January 1, 2010 to December 31, 2010, when the inflation factor used to trend costs will be limited to the inflation factor for the first year of the two-year period, and the rate period effective January 1, 2014, to December 31, 2014, when there will be no inflation factor used to trend costs. Administration costs, as contained in and part of operating costs, shall be subject to an administrative cost screen. Two separate administrative cost screens shall be calculated, one for hospitals with greater than 100 beds (group one), and one for hospitals with 100 or less beds (group two). The administrative cost screen is derived from the costs in the fiscal year one year prior to the base year (i.e., the same cost year from which the limitation is derived), and shall be the group average per diem cost plus 10 percent.

(2) The inflation factor is the Medicare inflation factor for hospitals and units excluded from the prospective payment system.

(f) Capital costs which are the allowed costs from the base year, as defined in subdivision (d) of this section, are the capital related costs as reported in the hospital financial reports. Interest and depreciation costs associated with all asset acquisitions are subject to approval under Part 551 of this Title. No capital expenditure for which approval by the Office of Mental Health is required under the applicable provisions of the Mental Hygiene Law or Part 551 of this Title shall be included in allowable capital costs for purposes of computing a rate of payment unless such approval shall have been secured. Capital costs are computed on a per diem basis.

(g) Allowed days are the patient days applicable to the costs for psychiatric and, if applicable, alcoholism inpatient services, as defined in section 577.4(f) of this Part.

(h) Payment rates for new hospitals which have no prior cost experience from which to establish base year costs and a cost limitation, as defined in subdivision (e) of this section, shall be determined as follows:

(1) Payment rates shall be for the time period as approved in a financial plan submitted by the hospital and approved by the commissioner under Part 551 of this Title.

(2) Allowed capital costs during the period of the financial plan will be computed based upon the approved budgeted capital costs, divided by the approved budgeted patient days for the rate year, and retroactively adjusted to actual certified cost divided by the higher of actual patient days or approved budgeted patient days. Capital costs are subject to the provisions of subdivision (f) of this section.

(3) Operating costs during the period of the financial plan will be the lower of the approved budgeted operating costs divided by the approved budgeted patient days or 110 percent of the statewide weighted average of the operating cost per diem of all private psychiatric hospitals for which the Office of Mental Health promulgates rates of payment pursuant to this Part.

(4) The operating cost component of the rate will be updated annually, except for the period January 1, 2010 to December 31, 2010, and the period January 1, 2014, to December 31, 2014, with the Medicare inflation factor for hospitals and units excluded from the prospective payment system, until the hospital has operated for six months at a minimum occupancy level of at least 75 percent and files its first cost report for that same period in accordance with section 577.5 of this Part.

(5) The actual cost report data will be used to establish the rate of payment for that hospital on a retroactive basis to the period covered by the hospital cost report. If the resulting rate of payment is higher than the per diem costs approved in the financial plan, the hospital will continue on the budget based method described in paragraphs (1)-(4) of this subdivision, until such time as the hospital submits subsequent financial reports and the methodology in subdivision (e) of this section can be applied.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.8 Certification and approval of rates

Payment rates established in accordance with the provisions of section 577.7 of this Part, or revised in accordance with the provisions of section 577.9 of this Part, shall be certified by the commissioner and shall be approved by the Director of the Budget.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 577.9 Revisions to rates

(a) The commissioner may consider only those requests for revisions to certified rates which are based on:

(1) errors made by the Office of Mental Health in the calculation of the rate;

(2) errors in the financial or statistical data submitted to the commissioner by the hospital;

(3) significant changes in the overall operating costs of a hospital resulting from the implementation of substantial changes in programs or services approved for implementation under applicable provisions of the Mental Hygiene Law, Part 366, Part 551, and Part 1010 of this Title; and

(4) significant changes in the overall capital costs of a hospital resulting from substantial capital projects approved under applicable provisions of the Mental Hygiene Law, Part 366, Part 551, and Part 1010 of this Title.

(b) Request for revision of a certified rate shall be sent to the commissioner by registered or certified mail and shall contain a detailed statement of the basis for the requested revision together with copies of any documentation the hospital wishes to submit.

(1) A request based upon the grounds set forth in paragraph (a)(2) of this section must be accompanied by a detailed statement of the corrected financial or statistical data certified in accordance with the requirements of section 577.5(b)(2) of this Part.

(2) A request based upon the grounds set forth in paragraph (a)(1) or (2) of this section must be submitted within 120 days of receipt by the hospital of the rate computation sheet.

(3) A request based upon the grounds set forth in paragraph (a)(3) or (4) of this section must be submitted within 60 days of the end of the rate year.

(c) The hospital shall be notified in writing of the determination of the request for revision of a certified rate, including a statement of the reasons therefor.

(d)

(1) The affirmation or revision of the certified rates resulting from such determination shall be final unless within 30 days of receipt of such written determination the hospital requests administrative review of the determination. Request for administration review of a determination to affirm or revise the certified rate shall be sent to the commissioner by registered or certified mail and shall contain a detailed statement of the hospital's objections to the determination, along with copies of any additional documentation the hospital wishes to submit.

(2) The hospital shall be notified in writing of the determination after administrative review including a statement of the reasons therefor. The determination after administrative reviews shall be final and any rate revision resulting therefrom shall be implemented in accordance with subdivision (g) of this section.

(e) [Reserved]

(f) Within 30 days of receipt of the final determination after administrative review, the hospital may request a hearing on factual issues determined adversely to the hospital in the administrative review. Requests for hearing, and the conduct thereof, shall be in accordance with the provisions of Part 503 of this Title.

(g)

(1) Revisions to rates determined in accordance with the provisions of paragraph (a)(1) or (2) of this section shall be effective on the first day for which the originally certified rate was effective.

(2) Revisions to rates determined in accordance with the provisions of paragraph (a)(3) or (4) of this section shall be effective on the first day of the calendar month following 30 days after receipt by the commissioner of the request and documentation or 30 days after implementation of changes in programs or services or completion of capital projects, whichever is later.

History

Amended, New York State Register March 19, 2014/Volume XXXVI, Issue 11, eff. 3/19/2014

Part 578 Medical Assistance Rates Of Payment For Residential Treatment Facilities For Children And Youth

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.1 Background and intent

(a) The purpose of these regulations is to establish standards and methods for determining rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by a residential treatment facility for children and youth licensed by the Office of Mental Health in accordance with the provisions of Part 584 of this Title.

(b) In order to be eligible for payments pursuant to title 11 of article 5 of the Social Services Law, a residential treatment facility for children and youth must meet the requirements of the Mental Hygiene Law and the requirements of title XIX of the Social Security Act, as identified in section 502.2(d) of this Title.

(c) The rates of payment established according to these regulations are intended to be adequate to meet the costs of an efficiently operated facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.2 Legal base

Sections 7.09, 41.41 and 43.02 of the Mental Hygiene Law grant the commissioner the power and responsibility to adopt regulations that are necessary and proper to implement matters under his jurisdiction and to establish standards and methods for determining rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by facilities, including residential treatment facilities for children and youth licensed by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.3 Applicability

(a) These regulations apply to any residential treatment facility for children and youth licensed pursuant to article 31 of the Mental Hygiene Law and issued an operating certificate in accordance with Part 584 of this Title.

(b) These regulations apply to the establishment of rates of payment made by government agencies pursuant to title 11 of article 5 of the Social Services Law for services provided by a residential treatment facility for children and youth. All payments by such agencies shall be at rates of payment certified by the commissioner and approved by the Director of the Budget pursuant to section 578.10 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.4 Definitions

(a) Allowable costs shall mean those costs incurred by a residential treatment facility for children and youth. To be allowable, costs must be reasonable and must relate to patient care.

(b) Allowable days shall mean the total of patient days and reserve bed days provided by a residential treatment facility for children and youth subject to a minimum and maximum utilization standard pursuant to section 578.13 of this Part.

(d) Fiscal year of a residential treatment facility for children and youth shall mean the 12-month period beginning on July 1st and ending on June 30th.

(e) Medicare program shall mean the Federal program of health insurance for the aged and disabled established by title XVIII of the Social Security Act.

(f) Patient day shall mean the unit of measure denoting lodging provided and services rendered to one resident between the census-taking hour on two successive days. A patient day is counted on the day of admission, but not on the day of discharge. A patient day is counted when a resident is admitted with the expectation of remaining overnight but is discharged on the same day. A patient day is counted on the day a resident returns from temporary hospitalization or leave of absence for a therapy day, but not on the day a resident departs.

(g) Provider of services means the organization which is legally responsible for the operation of a program. The organization may be an individual, partnership, association, corporation, public agency or a psychiatric center or institute operated by the Office of Mental Health.

(h) Reserved bed day shall mean the unit of measure between the census-taking hour on two successive days during which a bed is reserved for a resident who is temporarily hospitalized or is on leave of absence for a therapy day pursuant to Part 576 of this Title. A reserved bed day is counted on the day a resident departs for a temporary hospitalization or leave of absence for a therapy day, but not on the day a resident returns. In no event may a reserved bed day be counted on a day for which a patient day is counted. A reserved bed day is counted on the day telephone notification is received of circumstances requiring termination of the bed reservation but not on any subsequent days.

(i) Residential treatment facility is an inpatient psychiatric facility which provides active treatment under the direction of a physician for children who are under 21 years of age and is issued an operating certificate pursuant to Part 584 of this Title.

History

Amended New York State Register August 18, 2021/Volume XLIII, Issue 33, eff. 8/4/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.5 Financial reports

(a) Each residential treatment facility shall maintain records, and shall prepare and submit to the commissioner financial and statistical reports in accordance with the requirements of the commissioner.

(b) The accrual method of accounting shall be used.

(1) shall be prepared in accordance with generally accepted accounting principles, unless otherwise required by the commissioner; and

(2) shall be certified by an independent certified public accountant or an independent licensed public accountant and the operator or director of the residential treatment facility.

(d) Reports required to be submitted by subdivision (a) of this section shall be submitted within 120 days after the close of the residential treatment facility fiscal year. A 30-day extension of time for filing reports may be granted by the commissioner upon application received prior to the due date of the report only in those circumstances where the residential treatment facility establishes, by documentary evidence, that the reports cannot be filed by the due date for reasons beyond the control of the residential treatment facility.

(e) If a residential treatment facility fails to file the required reports on the date such reports are due, or fails to file corrected or additional reports within 30 days after notification by the commissioner that reports filed by the residential treatment facility were inaccurate, incomplete or incorrect, the commissioner may withhold five percent of the rate of payment for a period beginning on the first day of the calendar month in which the required reports were due and continuing until the last day of the calendar month in which the required reports are filed.

(f) If the residential treatment facility determines that the information contained in reports filed with the commissioner is inaccurate, incomplete or incorrect, the residential treatment facility shall immediately file with the commissioner corrected reports which comply with the requirements of subdivisions (b) and (c) of this section.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.6 Audits

(a) Each residential treatment facility shall maintain the statistical and financial records which formed the basis of the reports submitted to the commissioner for six years from the date on which the reports were submitted to the commissioner, or for such longer period as may be required under Federal law.

(c) The commissioner may enter into agreements with the Department of Social Services or other organizations or agencies having audit responsibilities to audit the financial and statistical records of any residential treatment facility. The conduct of such audits by the Department of Social Services shall be done in accordance with procedures as set forth in applicable regulations of the Department of Social Services. Audits of Medicaid by the Office of Mental Health shall also be conducted in accordance with procedures as set forth in applicable Department of Social Services regulations or as set forth in agreement(s) between the Office of Mental Health and the Department of Social Services. All other audits shall be done in accordance with this Part.

(d) Audits which are conducted by the Office of Mental Health, or its designee, shall be conducted in accordance with Part 552 of this Title and the following procedures:

(1) In addition to the draft audit report issued in accordance with section 552.6(a) of this Title a notice of the proposed rate revision shall be sent to the residential treatment facility.

(2) In addition to the provider's response to the final audit report required in section 552.7(e) of this Title, proposed rate revisions resulting from the implementation of audit findings shall be final unless within 45 days of receipt of the proposed rate revision, the residential treatment facility requests a hearing on factual issues. Requests for hearings, and the conduct of such hearings, shall be pursuant to Part 503 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.7 Rates of payment

(a) Rates of payment shall be established on a prospective basis.

(b) Rates of payment established under this section shall be all-inclusive, taking into account all allowable patient days and all allowable costs.

(c) Rates of payment established pursuant to this section shall be effective for a period of 12 months, which shall be coterminous with the residential treatment facility's fiscal year, unless otherwise determined by the commissioner.

(d) Rates of payment established pursuant to this section shall be provisional pending the completion of an audit pursuant to section 578.6 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.8 Computation of rate of payment

(a) The rate of payment shall consist of an operating cost per diem and a capital cost per diem, computed from allowable costs and subject to cost category standards. The rate year shall be the 12-month period from July 1st through June 30th. The rate of payment effective July 1, 1995 through June 30, 1996 shall be a continuance of the rate of payment effective July 1, 1994 through June 30, 1995. The rate of payment effective July 1, 2011 through June 30, 2012, and July 1, 2012 through June 30, 2013, shall be a continuance of the rate of payment in effect on June 30, 2011, except to the extent necessary to adjust such payments pursuant to the provisions of section 578.14(o) of this Part.

(1) Allowable costs shall be determined from the cost report as submitted pursuant to section 578.5 of this Part for the base year which is the fiscal year two years prior to the rate year, and are subject to principles of reimbursement pursuant to section 578.14 of this Part. The commissioner may determine that a provider has inadequate cost experience for the base year and may select an alternate cost report period, in which case the costs will be adjusted to reflect the costs in the base year.

(2) Cost category standards (i.e., screens or the maximum amount that will be reimbursed for a specific expense or group of expenses) shall be considered when calculating the total reimbursable costs to be included in the operating component for reimbursable services for residential treatment facilities.

(i) A cost category standard shall be determined for combined administration, support and maintenance services. Reimbursable cost per diem shall be the lesser of the standard or the allowable administrative, support and maintenance cost per diem. The administration, support and maintenance services standard is computed separately for upstate and downstate facilities. The standard is computed from the base year using a combination of 50 percent of the average allowed per diem cost for the applicable region and 50 percent of the statewide average per diem cost, plus seven and one-half percent.

(ii) The reimbursable costs for the medical/clinical services including nursing, shall be the lesser of the allowable costs reported on the base year cost report or the medical/clinical screen multiplied by the FTE standard, as determined by the commissioner. The medical/clinical screen is computed separately for upstate and downstate facilities. The screen is computed from the base year using a combination of 50 percent of the average allowed per diem cost for the applicable region and 50 percent of the statewide average per diem cost, plus seven and one-half percent.

(iii) Downstate facilities are defined as those facilities in the following counties: Bronx, Kings, New York, Putnam, Queens, Richmond, Rockland, Westchester, Nassau and Suffolk. Upstate facilities are all those facilities located in the remaining counties of New York State.

(3) The purchase of health services category shall include all allowable costs pursuant to section 578.14 of this Part as defined pursuant to section 584.11(d) of this Title. The services allowable in the purchase of health services category shall be approved by the commissioner.

(4) The allowable costs, as set forth in paragraph (1) of this subdivision, that meet the requirements stated in paragraphs (2) and (3) of this subdivision, shall be trended by the applicable Medicare inflation factor for hospitals and units excluded from the prospective payment system except for the rate periods effective July 1, 1996 through June 30, 1997, and July 1, 2009 through June 30, 2010, where the inflation factor used to trend costs will be limited to the inflation factor for the first year of the two-year period. No trend shall be applied to allowable costs for the rate period effective July 1, 2013 through June 30, 2014, and July 1, 2014 through December 31, 2014.

(5) The capital cost per diem shall be determined from the base year cost report as submitted pursuant to section 578.5 of this Part, and subject to the principles of reimbursement pursuant to section 578.14 of this Part.

History

Amended, New York State Register January 28, 2015/Volume XXXVII, Issue 04, eff. 1/28/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.9 A residential treatment facility for children and youth with inadequate cost experience

(a) Rates of payment for a residential treatment facility with inadequate cost experience shall be determined on the basis of satisfactory cost projections contained in budgets and other information submitted to the commissioner by the residential treatment facility. Budgets shall be submitted to the commissioner no later than 120 days prior to the date on which the rates of payment will be effective. The form and content of any such budgets may vary as prescribed by the commissioner. A residential treatment facility shall submit to the commissioner, within 15 days of a written request therefor, any additional information the commissioner determines is necessary to compute or revise rates of payment in accordance with this section.

(b) The rate of payment for a newly certified residential treatment facility shall be computed from a budget report. The budget report period shall cover the facility's first 12 months of operation. The commissioner may require that the budget be divided into several interim periods during the first 12 months and be extended to include subsequent periods, not to exceed an additional 12 months. The commissioner may further require specialized reports regarding staffing, utilization, capital costs, and cash flow.

(1) For a newly certified residential treatment facility which expects to achieve a minimum average utilization of 90 percent during the first year of operation, the rate of payment shall be developed from the first 12-month budget report.

(i) The budgeted operating and capital costs shall be reviewed to determine the allowed costs in accordance with the reimbursement principles contained in section 578.14 of this Part.

(ii) The operating portion of the allowed cost shall then be adjusted from the budget period to the period upon which the cost category standards were calculated using the applicable trend factors as specified in section 578.8 of this Part, or as determined by the commissioner if trend factors are not specified for a particular period.

(iii) The adjusted operating cost shall then be limited to the maximum amounts contained in the cost category standards from section 578.8(a)(2)-(4) of this Part, and then trended to the appropriate rate period.

(iv) The operating per diem rate of payment shall be calculated based upon the total possible patient days of the residential treatment facility at 90 percent utilization.

(v) Capital costs shall be calculated on a per diem basis using the total possible patient days of the residential treatment facility at 90 percent utilization.

(2) For a newly certified residential treatment facility which expects an average utilization of less than 90 percent during the first year of operation, the rate of payment shall be developed from the budget report(s), and a utilization and staffing plan approved by the commissioner. The plan shall estimate the month-by-month utilization and staffing of the residential treatment facility for the first 12 months of operation, and for the second 12 months as applicable. In no instance shall the phased utilization plan exceed one year.

(i) The budgeted operating and capital costs shall be reviewed to determine the allowed costs in accordance with the reimbursement principles contained in section 578.14 of this Part.

(ii) The allowed operating cost shall then be adjusted from the budget period to the period upon which the cost category standards were calculated using the applicable trend factors as specified in section 578.8 of this Part, or as determined by the commissioner if trend factors are not specified for a particular period.

(iii) The adjusted allowed cost shall then be limited to the maximum amounts as contained in the cost category standards from section 578.8(a)(2)-(4) of this Part. The maximum amount for administration, maintenance and support costs shall be the cost category per diem multiplied by the total possible patient days of the residential treatment facility at 90 percent utilization. Reimbursement is calculated by determining the lower of the adjusted allowed budgeted cost or the maximum amount, and trending the result to the budget report period.

(iv) The per diem rate of payment for operating and capital costs shall be calculated based upon patient days contained in the approved utilization plan.

(v) More than one rate of payment may be calculated to coincide with the residential treatment facility's planned utilization, and budgeted costs; which shall be determined at the commissioner's discretion.

(vi) The residential treatment facility shall submit monthly reports of actual utilization during the first year of operation.

(vii) If the residential treatment facility's actual monthly utilization significantly exceeds the residential treatment facility's planned monthly utilization, the rates of payment shall be recalculated using reimbursable operating and capital costs as determined in subparagraphs (i)-(iii) of this paragraph, trended to the appropriate period, and divided by actual patient days. The commissioner may adjust retroactively or prospectively the residential treatment facility's rates of payment.

(c) For a currently certified residential treatment facility increasing certified bed capacity by 20 percent or more, the rate of payment shall be determined in accordance with paragraph (b)(1) of this section. However, the commissioner shall take into consideration the actual cost and patient day experience of the existing residential treatment facility when reviewing budget(s), and shall expect the reconfigured residential treatment facility to demonstrate economies of scale.

(d) For a currently certified residential treatment facility decreasing certified bed capacity by 20 percent or more, the rate of payment may be computed using the facility's existing reimbursement adjusted by the budgeted variable costs associated with the decrease in certified capacity. Rate(s) of payment may be calculated to reflect a phase down period, and a budget based period thereafter. Each period may not exceed 12 months.

(1) Rates of payment calculated for the phase down period shall be developed from the residential treatment facility's existing reimbursement, adjusted by any variable cost decreases or extraordinary cost increases, and adjusted by the phase down utilization. More than one rate of payment may be calculated to coincide with the facility's phase down period, which shall be determined at the commissioner's discretion.

(i) The existing rate of payment is multiplied by the patient days used in the calculation of that rate of payment, resulting in a dollar amount of reimbursement.

(ii) The amount of reimbursement is adjusted by the applicable amount of variable cost decrease and the amount of any extraordinary cost associated with the phase down.

(iii) The total reimbursement is then divided by the product of the targeted certified capacity for the applicable period of the phase down, multiplied by the number of days in the period and by a minimum utilization of 96 percent.

(2) The rate of payment for the subsequent budget based period shall be developed from the residential treatment facility's existing reimbursement, adjusted by any variable cost decreases or extraordinary cost increases, adjusted for inflation as appropriate, and adjusted to the staffing standards for medical/clinical and nursing categories, as approved by the commissioner.

(i) The existing rate of payment is multiplied by the patient days used in the calculation of that rate of payment, resulting in a dollar amount of reimbursement. The reimbursement is then increased by an appropriate inflation factor, as determined by the commissioner.

(ii) The amount of reimbursement is adjusted by the applicable amount of variable cost decrease and the amount of any extraordinary cost associated with the phase down.

(iii) Costs for the medical/clinical and nursing categories are deleted, and are substituted as follows. Medical/clinical and nursing costs are computed using the full time equivalent staffing standards, as approved by the commissioner, multiplied by the facility's salary and fringe benefit cost experience. The resulting combined amount is subject to the average salary and fringe benefit screens, as specified in section 578.8(a)(2)(ii) and (iii) of this Part, multiplied by the approved staffing standards. The cost data is made comparable by applying the appropriate trend factors as determined by the commissioner.

(iv) Capital costs shall be updated in accordance with the approved costs as specified in section 578.8(a)(5) of this Part.

(v) The total reimbursement (the sum of immediately preceding subparagraphs [i] through [iv] of this paragraph) is then divided by the product of the certified capacity for the phased down budget based period, multiplied by the number of days in the period and by a minimum utilization of 96 percent.

(e) Financial reports pursuant to section 578.5 of this Part shall be submitted within 120 days as follows in accordance with whichever is earlier, either:

(1) the first six-month period during which the residential treatment facility has operated at an average six-month utilization of at least 90 percent; or

(2) one year after the first resident was admitted to the residential treatment facility. If the facility has not attained an average of 90 percent utilization in the first year of operation, the commissioner may adjust the report period to reflect a period where utilization has averaged 90 percent.

(f) Upon submission of the financial reports pursuant to subdivision (e) of this section, the commissioner may, at his discretion, adjust retroactively the residential treatment facility's budget-based rate(s) of payment to more accurately reflect the costs of operating the facility. The facility shall receive the lower of its actual cost or its budget based rate of payment.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.10 Certification and approval

Rates of payment established pursuant to section 578.8 or 578.9 of this Part, or revised pursuant to section 578.6 or 578.11 of this Part, shall be certified by the commissioner and shall be approved by the Director of the Budget.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.11 Revisions to rates of payment

(a) The commissioner shall consider only those requests for revisions of certified rates which result in a fiscal impact of over one percent of the certified rate, and a minimum of $20,000; and which are based on:

(1) errors made by the Office of Mental Health in the calculation of the rate of payment;

(2) errors in the financial or statistical data submitted to the commissioner by a residential treatment facility;

(3) a substantially changed residential treatment facility determined to have a 20-percent change in certified capacity, or a major change in resident population or resident services, when such changes have been approved by the commissioner. Revisions to the rate may also be initiated by the commissioner pursuant to this subdivision;

(4) additional staffing required to meet accreditation standards of the Joint Commission on Accreditation of Hospitals, up to the full-time equivalent staffing standards approved by the commissioner;

(5) Federal- or State-mandated requirements resulting in increased costs;

(6) capital costs approved through the applicable provisions of the Mental Hygiene Law and Part 551 of this Title;

(7) family therapy expenses, as determined by the commissioner;

(8) nursing services for changes in nursing staff requirements, as determined by the commissioner;

(9) additional staffing and other than personal service expenses, subject to prior written approval from the appropriate regional office and the commissioner's designate, resulting from patients who have been diagnosed with Acquired Immune Deficiency Syndrome (AIDS). Approval for additional staffing and other personal service expenses shall be based on the necessity of such services for the safety and well being of patients and a determination that such expenses are within the appropriate budgetary guidelines.

(b) Request for revision of a certified rate of payment shall be sent to the commissioner by registered or certified mail and shall contain a detailed statement of the basis for the requested revision together with copies of any documentation a residential treatment facility wishes to submit.

(1) A request based upon the grounds set forth pursuant to paragraph (a)(1) or (2) of this section must be accompanied by a detailed statement of the corrected financial or statistical data certified pursuant to section 578.5(c)(2) of this Part.

(2) A request based upon the grounds set forth pursuant to paragraph (a)(1) or (2) of this section shall be submitted within 120 days of receipt by a residential treatment facility of the rate of payment computation sheet.

(3) A request for a revision pursuant to paragraph (a)(3), (4), (5), (6), (7), (8) or (9) of this section must be submitted within 60 days of the close of the rate of payment period in question.

(4) A request for a revision pursuant to paragraph (a)(6) of this section and consistent with this section shall be processed on a semi-annual basis, beginning July 1, 1990.

(c) The residential treatment facility shall be notified in writing of the determination of the request for revision of a certified rate of payment, including a statement of the reasons therefor.

(d) The affirmation or revision of a certified rate of payment resulting from a request for revision of a certified rate of payment shall be final unless within 30 days of receipt of such written determination a residential treatment facility requests a hearing on factual issues determined adversely to the residential treatment facility. Requests for a hearing, and the conduct thereof, shall be in accordance with the provisions of Part 503 of this Title.

(e) A revision to the rate of payment determined pursuant to paragraph (a)(1) or (2) of this section shall be effective on the first day for which the originally certified rate of payment was effective.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.13 Allowable patient days

(a) For purposes of determining a rate of payment, allowable patient days shall be computed using the higher of allowable days pursuant to section 578.4(b) of this Part or a minimum utilization of 90 percent of certified bed capacity, provided that the number of allowable days shall not exceed a maximum utilization of 96 percent of certified bed capacity.

(b) The minimum utilization requirements pursuant to subdivision (a) of this section may be waived in full or in part by the commissioner if it is demonstrated to the satisfaction of the commissioner that waiver is appropriate.

History

Amended New York State Register August 18, 2021/Volume XLIII, Issue 33, eff. 8/4/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.14 Allowable costs

(a) To be considered as allowable in determining the rate of payment, costs must be properly chargeable to necessary resident care rendered in accordance with the requirements of Part 584 of this Title and any applicable codes, rules, regulations and laws pursuant to title XIX of the Social Security Act. The allowability of costs shall be determined in accordance with the following:

(1) specific and applicable sections of this Part;

(2) Medicare reimbursement principles;

(3) reasonableness and relationship to resident care as determined by the commissioner; and

(4) generally accepted accounting principles.

(b) Allowable operating costs shall include the costs of all services necessary to meet the requirements of Part 584 of this Title and the special needs of the resident population to be served by a residential treatment facility. Such costs shall include the costs of mental health services and physical health services, whether the services are provided directly by the residential treatment facility or pursuant to a written agreement with a provider of service. Such costs do not include educational costs pursuant to section 584.11(f) of this Title.

(c) Allowable costs shall include a monetary value assigned to services provided by religious orders and for services rendered by the provider of services of a residential treatment facility.

(d) Allowable costs shall include depreciation and interest pursuant to sections 578.16 and 578.18 of this Part. In accordance with section 578.16 of this Part, allowable costs may include interest and principal or debt service rather than interest and depreciation.

(e) Allowable costs shall include only that portion of the dues paid to any professional association which has been demonstrated, to the satisfaction of the commissioner, to be allowable to expenditures other than for public relations, advertising and political contributions.

(f) Allowable costs shall not include costs for services that have not been approved by the commissioner.

(g) Allowable costs shall not include expenses or portions of expenses reported by a residential treatment facility which are determined by the commissioner not to be reasonably related to the efficient provision of service because of either the nature or amount of the particular item.

(h) Allowable costs shall not include costs which principally afford entertainment or amusement to owners, operators or employees.

(i) Allowable costs shall not include any interest charged or penalty imposed by governmental agencies or courts, nor the costs of policies obtained solely to insure against the imposition of such a penalty.

(j) Allowable costs shall not include the direct or indirect costs of advertising, public relations and promotion except in those instances where the costs are specifically related to the operation of the residential treatment facility and not for the purpose of attracting residents.

(k) Allowable costs shall not include costs of contributions or other payments to political parties, candidates or organizations.

(l) Allowable costs shall not include any costs which the commissioner determines result solely from the transfer of ownership of a residential treatment facility.

(m) Allowable operating costs shall not include the following costs incurred by a residential treatment facility:

(1) inpatient care, other than such care provided in a residential treatment facility; and

(2) emergency services.

(n) Allowable operating costs shall not include the costs of prosthetic or orthotic appliances and devices, including hearing aids which are supplied by vendors who are eligible for payment for such appliances or devices in accordance with the established requirements of the Medical Assistance Program.

(o) Effective on or after January 1, 2011, and contingent upon Federal approval, allowable operating costs shall not include the costs of pharmaceuticals listed on the New York State Medicaid formulary, except for such costs incurred during the first 90 days after admission to the residential treatment facility or until Medicaid eligibility is established for the recipient, whichever comes first. Pharmaceuticals for which the cost is so excluded may be reimbursed, as appropriate, on a fee-for-service basis by the Medicaid program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.15 Recoveries of expense

Operating costs shall be reduced by the cost of services and activities which are not properly chargeable to resident care. In the event that the commissioner determines that it is not practical to establish the costs of such services and activities, the income derived therefrom may be substituted for costs of these services and activities. Such activities and services covered by this provision include:

(a) drugs and supplies sold for use outside the residential treatment facility;

(b) discount on purchases;

(d) employee cafeterias;

(e) meals provided to special nurses or residents' guests;

(f) operation of parking facilities for community convenience;

(g) lease of office and other space of concessionaires providing services not related to resident service; and

(h) tuitions and other payments for educational services, room and board, and other services not directly related to resident service.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.16 Depreciation

(a) Except as otherwise provided in this Part pursuant to determination by the commissioner, allowable depreciation shall be determined by the application of the principles of reimbursement developed for determining rates of payment under title XVIII of the Social Security Act.

(b) Reported depreciation based on historical cost is recognized as a proper element of cost. Useful lives shall be the higher of the reported useful life or those useful lives consistent with provisions of title XVIII of the Social Security Act.

(d) Effective July 1, 1992, capital construction projects for newly certified beds in operation after October 1, 1989, shall be reimbursed interest and principal in accordance with the debt repayment amortization schedule up to the amount of the financing approved under Part 551 of this Title. That part of the total project cost approved under Part 551 of this Title, but not approved for financing, shall be reimbursed allowable depreciation expense.

(e) Effective July 1, 1989, residential treatment facilities with existing funded depreciation accounts shall have their capital reimbursement rate reduced to offset the amount of the funded depreciation which should have been funded as of July 1, 1992. Withdrawals from existing funded depreciation accounts no longer require prior approval from the commissioner, and may be utilized to offset the above capital rate reduction. The amount of the capital rate reduction shall be equal to the amount of funded depreciation which should be in the provider's funded depreciation account. Upon depletion of the funded depreciation account, the capital rate shall be adjusted in accordance with subdivision (d) of this section.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.17 Projects requiring approval by the commissioner

(a) No capital expenditures for which approval by the Office of Mental Health is required under the provisions of the Mental Hygiene Law or Part 551 of this Title shall be included in allowable capital costs for purposes of computation of the rate of payment unless such approval shall have been secured.

(b) For projects requiring approval by the Office of Mental Health, capital costs shall be limited to the amount approved by the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.18 Interest

(a) Necessary interest on both current and capital indebtedness is an allowable cost.

(b) To be considered as an allowable cost, interest shall be incurred to satisfy a financial need, and at a rate not in excess of what a prudent borrower would have had to be in the money market at the time the loan was made.

(c) Such interest shall be paid to a lender not related through control, ownership, affiliation or personal relationship to the borrower, except in instances where the prior approval of the commissioner has been obtained.

(d) Interest expense shall be reduced by investment income with the exception of income from funded depreciation, qualified pension funds, deferred compensation funds, and gifts, grants or endowments, whether restricted or unrestricted.

(e) Interest on current working capital indebtedness shall be treated and reported as an operating administrative expense.

(f) Interest on capital indebtedness is an allowable cost if the debt generating the interest is approved by the commissioner, incurred for authorized purposes, and the principal of the debt does not exceed that which is either approved by the commissioner or the cost of the authorized purposes. Capital indebtedness shall mean all debt obligations of a residential treatment facility that are:

(1) evidenced by a mortgage note or bond and secured by a mortgage on the land, building or nonmovable equipment, a note payable secured by the nonmovable equipment of a facility, a capital lease;

(2) incurred for the purpose of financing the acquisition, construction or renovation of land, building or nonmovable equipment;

(3) found by the commissioner to be reasonable, necessary and in the public interest with respect to the residential treatment facility. Interest related to refinancing indebtedness shall be considered an allowable cost only to the extent that it is payable with respect to an amount equal to the unpaid principal of the indebtedness then being refinanced. However, interest incurred on refinanced debt in excess of the previously unpaid balance of the refinanced indebtedness will be allowable on acceptable demonstration to the commissioner that such refinancing will result in a debt service savings over the life of the indebtedness; or

(4) incurred for the purpose of advance refunding of debt. Losses resulting from the advanced refunding of debt shall be treated and reported as deferred charge. This deferred charge is to be amortized on a straight-line basis over the period to the scheduled maturity date of the refunding debt.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.19 Rentals, leases, sale and lease-back, and lease-purchase arrangements for real property

Allowable costs for real property will be limited to the amount the provider of services could have included in reimbursable cost if the provider of services had legal title to the property. The requirement may be waived by the commissioner if the amount involved is found by the commissioner to be reasonable, necessary and in the public interest.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.20 Conversion to a residential treatment facility of an institution previously licensed by the department of social services

(a) Allowable depreciation for the residential treatment facility will be a continuation of the Department of Social Services depreciation schedule previously in effect unless the commissioner determines error(s) had been made in that calculation. This requirement may be waived by the commissioner if the circumstances involved are found by the commissioner to be reasonable, necessary and in the public interest with respect to the facility.

(b) When an institution converts only part of its capacity to a residential treatment facility, allowable depreciation for the facility will be based on the historical cost and useful life of the specific building(s) being converted.

(c) The square footage used to determine allowable capital-related costs will be as determined by the commissioner in connection with his project approval authority under the Mental Hygiene Law and Part 551 of this Title. When only a portion of a building is being converted to a residential treatment facility, the percentage of approved square footage to total square footage for the building will be used to determine capital-related costs of the residential treatment facility.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.21 Medical facilities previously depreciated under the medicare and/or medicaid program

Allowable depreciation for assets previously depreciated under Medicare and/or Medicaid will be limited to the lower of the acquisition cost of the asset to the new owners or the historical cost to the owner of record as of July 18, 1984, or in the case of an asset not in existence as of that date, the first owner of record of the asset after that date.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.22 Compensation of provider of services and relatives of provider of services

(a) Reasonable compensation for a provider of services or relatives of a provider of services where services have been actually performed and required to be performed shall be considered as an allowable cost. The amount to be allowed shall be equal to the amount normally required to be paid for the same service provided by a nonrelated employee, as determined by the commissioner. Compensation shall not be included in the rate of payment computation for any services which the provider of services or relative of the provider of services is not authorized to perform.

(b) Any amount reported as compensation for services rendered by provider of services or relative of a provider of services shall not be allowed in excess of the maximum allowance for full-time services in carrying out his/her primary function.

(c) For purposes of subdivision (a) of this section, in determining a reasonable level of compensation for provider of services or relatives of a provider of services, the commissioner may consider the quality of care provided to residents by the residential treatment facility during the year in question.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.23 Costs of related organizations

(a) A related organization shall be defined as any entity which the residential treatment facility is in control of or is controlled by, either directly or indirectly, or where an association of material interest exists in an entity which supplies goods and/or services to the residential treatment facility, or any entity which is controlled directly or indirectly by the immediate family of the provider of services. Immediate family shall include each parent, child, spouse, brother, sister, first cousin, aunt and uncle, whether such relationship arises by reason of birth, marriage or adoption.

(b) The costs of goods and/or services furnished to a residential treatment facility by a related organization are includable in the computation of the basic rate of payment at the lower of the cost to the related organization or the market price of comparable goods and/or services available in the residential treatment facility within the course of normal business operations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 578.24 Program development grants

(a) The commissioner may provide program development grants to a voluntary not-for-profit organization developing a residential treatment facility.

(b) The agreement entered into by a provider of services to obtain a program development grant will require the provider of services to repay the program development grant to the extent that reimbursement is obtained for the costs incurred through use of the program development grant funds.

(c) In addition to the basic rate of payment set pursuant to sections 578.7, 578.8 and 578.9 of this Part, there shall be a second rate of payment set for a residential treatment facility which has received a program development grant. This second rate of payment will include costs incurred through use of the grant funds.

(d) Costs incurred through use of program development grants will be amortized over a five-year period.

(e) Office of Mental Health and Department of Social Services will establish procedures through rate payment mechanisms for repayment of the program development grant.

(f) When the provider of service ceases operations as a residential treatment facility, any unpaid program development grants may be recouped directly from the provider of service.

Part 580 Operation Of Psychiatric Inpatient Units Of General Hospitals

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.2 Legal base

(a) Section 31.02 of the Mental Hygiene Law prohibits the operation of any part of a general hospital for the purpose of providing residential services, including examination, diagnosis, care, treatment or rehabilitation of persons with mental disabilities including mental illness, unless an operating certificate has been obtained from the commissioner. Sections 31.07, 31.09, 31.13 and 31.19 further authorize the commissioner or their representatives to examine and inspect such units to determine their suitability and proper operation. Sections 31.16 and 31.17 authorize the commissioner to suspend, revoke or limit any such operating certificate.

(b) Section 31.04 of the Mental Hygiene Law empowers the commissioner to adopt regulations deemed necessary to carry out the provisions of article 31 of the Mental Hygiene Law, including establishing procedures for the issuance, amendment and renewal of operating certificates.

(c) Section 29.15 of the Mental Hygiene Law establishes requirements for the discharge or conditional release of individuals from hospitals operated by the Office of Mental Health or from psychiatric inpatient services subject to licensure by such Office.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.4 Certification

(a) No psychiatric inpatient unit of a general hospital may be operated without a valid operating certificate issued by the New York State Office of Mental Health. Furthermore, as part of a general hospital, psychiatric inpatient units are required to operate under a valid license issued by the Department of Health, and are thus subject to, and shall remain in compliance with, applicable requirements of such department.

(b) Application for new and renewal certificates shall be submitted as directed by the office in accordance with Parts 551 and 573 of this Title.

(c) A certificate valid for a period not to exceed three years shall be issued for units which satisfactorily meet the conditions stated in this Part. The duration of the operating certificate shall be based upon the degree to which the unit meets applicable regulations and standards, upon review by the office.

(d) The current certificate shall be framed and displayed in a conspicuous place which is readily accessible to the public.

(e) Certificates shall remain the property of the office, and expired, invalidated, revoked or terminated certificates shall be returned to the office.

(f) The certificate holder shall obtain prior approval of the office for all projects subject to prior approval review in accordance with Part 551 of this Title.

(g) Pursuant to Part 551 of this Title, the certificate holder shall notify the Office of any intention to terminate voluntarily its services to persons with mental illness. This notice of intention to terminate voluntarily shall include a detailed statement of the actions which will be taken to assure appropriate referral of persons receiving care or treatment, to preserve the confidentiality and availability of records, and to settle financial accounts according to preexisting individual arrangements. No program shall terminate its services until written approval from the office to do so is obtained, individuals have been appropriately transferred or discharged, and records have been appropriately preserved and stored, all to the satisfaction of the office. Failure to obtain the required approval from the office may subject the certificate holder to civil penalties.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.5 Organization and administration

(a) Organization.

(1) The governing body of the general hospital shall be responsible for the overall operation and management of the psychiatric inpatient unit, and may discharge any responsibilities hereinafter stated through any body of delegates which is approved by the commissioner.

(2) The governing body shall establish and maintain a current plan of organization for the unit which clearly indicates lines of accountability, the nature of professional responsibility to be exercised according thereto, and the professional qualifications required.

(3) The governing body shall develop and revise, as necessary, written policies for the quantity, quality, scope, goals, objectives and evaluation of all programs, policies for the accomplishment of stated purposes, and personnel policies. Personnel policies shall prohibit discrimination on the basis of race or ethnicity, religion, color, creed, disability, sex, marital status, age, national origin, gender identity or sexual orientation. Such policies shall include but not be limited to:

(i) policies governing affirmative action that are consistent with the affirmative action and equal employment opportunity obligations imposed by title VII of the Civil Rights Act, Federal Executive Order 11246, the Rehabilitation Act of 1973, section 504, as amended, and the Vietnam Era Veteran's Readjustment Act;

(ii) personnel policies and procedures shall provide for verification of employment history, personal references, work record and qualifications. Such policies shall also provide for securing a signed sworn statement whether, to the best of their knowledge, the applicant has ever been convicted of a crime in this State or any other jurisdiction;

(iii) written policies and procedures governing patient records that ensure confidentiality consistent with the Mental Hygiene Law, sections 33.13, 33.14 and 33.16, 45 CFR parts 160 and 164 and which provide for appropriate retention of such records pursuant to this Part; and

(iv) written policies that ensure the protection of patients' rights. At a minimum these policies shall establish and describe a patient grievance procedure. The provider shall post a statement of patients' rights in a conspicuous location easily accessible to the public. The statement shall be provided in the individual's preferred language, and be accessible to the blind and visually impaired.

(4) The governing body shall establish written staff development and training policies which address orientation and ongoing staff development and training which shall include, but not be limited to, behavioral management interventions, techniques and alternative methods of safely handling crisis situations and safety and security procedures. In addition, in those hospitals serving children, staff training shall include the principles of child development and developmentally-appropriate interventions, family engagement, the laws and regulations governing child abuse reporting and the protection of children from child abuse and maltreatment. Such training in those hospitals serving children shall include preemployment orientation and continuing education.

(5) The governing body shall establish written volunteer policies and procedures. Such policies and procedures shall provide for screening of volunteers and verification of employment history, personal references and work history; supervision of volunteers; training in accordance with paragraph (4) of this subdivision. Such policies shall also provide for securing a signed sworn statement whether, to the best of their knowledge, the volunteer has been convicted of a crime in this State or any other jurisdiction.

(6) The governing body shall establish procedures to assure the health and safety of the individuals in the program, and shall develop, implement, and regularly monitor clinical risk management programs including but not limited to reviews of the use of restraint and seclusion and treatment over objection, in order to protect the health and safety of individuals and enhance their quality of care.

(7) The governing body shall meet as often as necessary to properly execute its functions, and in no event less often than quarterly. Minutes of all official meetings of the governing body shall be maintained as permanent record of the decisions made in relation to the operation of the psychiatric inpatient unit and shall be made available to the office upon request.

(8) Ongoing direction and control of the program of the unit shall be delegated by the governing body to a physician whose qualifications in psychiatry are appropriate to the program. For purposes of this Part, this person shall be known as the director.

(9) Administrative management of the unit may be delegated by the governing body to an appropriately qualified administrator.

(b) Administration.

(2) The governing body shall maintain a separate set of financial accounts for the operation of the psychiatric inpatient unit.

(i) All admission policies shall prohibit discrimination on the basis of race or ethnicity, religion, creed, sex, age, national origin, sexual orientation, gender identity, or physical disability, previous hospitalization in a licensed or State-operated psychiatric facility or ability to pay fees, provided, however, nothing in this subparagraph shall be interpreted to prevent a facility from making admission or discharge decisions based upon the functional, clinical and behavioral needs of a n individual which are relevant to its program.

(ii) No facility shall deny care and treatment to, or otherwise discriminate against, persons who are Limited English Proficient, deaf or hard-of-hearing, in accordance with section 527.4 of this Title.

(iii) A facility shall not deny access to a person who otherwise meets requisite admission criteria solely on the basis of multiple diagnoses or a diagnosis of HIV infection, other chronic medical comorbidity, history of suicide attempt, history of violence, criminal and juvenile justice system involvement, personality disorder, substance use disorder, or intellectual or developmental disability.

(5) The governing body shall appoint a special review committee, including members of the professional clinical staff, which shall:

(i) develop a written special review plan subject to approval by the governing body and the office. This plan shall provide for review of all incidents in accordance with Part 524 of this Title and extra-risk procedures administered. Extra-risk procedures may include, but not be limited to, interventional therapies, experimental treatment modalities, and restraint or seclusion;

(ii) review and evaluate incidents and extra-risk procedures in accordance with the plan;

(iii) determine the facts in any incident reviewed, review ongoing practices and procedures in relation to such incidents and extra-risk procedures, and recommend changes in policies, practices or procedures which may be indicated;

(iv) include, either on a regular membership basis or by special arrangement as indicated, the participation of appropriately qualified and experienced physicians; and

(v) meet as often as necessary to properly execute is functions, and in no event less often than quarterly, keeping written minutes of its deliberations and submitting reports to the governing body as necessary.

(6) The governing body shall provide for the following in those hospitals which provide services to children:

(i) procedures for notification of the child's parent or guardian of incidents as required by law, including but not limited to Mental Hygiene Law section s 33.23 and 33.25; and

(ii) procedures for the proper reporting to the Statewide Central Register of Child Abuse and Maltreatment of suspected child abuse or maltreatment by a guardian, caretaker, or other person over the age of 18 who is responsible for the care of the child; and

(iii) procedures for the proper reporting of incidents to the Justice Center and to the office.

(7) The governing body shall cause to be written, made known to all employees and maintain a current plan for safeguarding all individuals in the event of a major natural disaster or civil disturbance.

(8) The governing body shall require staff of the facility to participate with the local governmental unit in local planning processes as required by sections 41.05(e) and 41.16 of the Mental Hygiene Law. Such participation shall be documented in the approved local services or unified services plan of each local governmental unit served by the facility. At a minimum, facility participation shall include:

(i) provision of budgeting and planning data as requested by the local governmental unit;

(ii) identification of the population being served by the facility;

(iii) identification of the geographic area being served by the facility;

(iv) description of the facility's relationship to other providers of services who serve the same geographic area, including but not limited to, written agreements to ensure expeditious access to programs by persons who need them. At a minimum, these agreements shall provide a process for prompt referral, evaluation and, as necessary, admission to cooperating programs; specify mechanisms for coordinated development of service plans for individuals being served by more than one program; provide for access to emergency psychiatric services within the geographic area; and provide a mechanism for sharing information about individuals being served; and

(v) attendance at planning meetings as may reasonably be required by the local governmental unit.

(1) If any children of legal school age are served, the hospital shall make available an appropriate instructional program approved by the New York State Education Department.

(2) The treatment program in those hospitals which provide services to children shall include the means for providing instruction to individuals under the age of 18, and, when required pursuant to an Individualized Education Plan, to certain individuals over the age of 18, consistent with their age, needs and clinical condition, as well as the needs and circumstances within the facility or program, in techniques and procedures which will enable such individuals to report abuse and maltreatment.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.6 Program

(a) General.

(1) The program of services shall be provided through a person-centered process with shared decision making.

(2) The program of services shall be informed by the understanding that implicit bias may affect the assessment, diagnosis, treatment, and discharge planning of Black, Indigenous, People of Color (BIPOC) and other marginalized individuals.

(3) The program of services shall be provided in accordance with the principle of continuity of care, whereby a single member of the professional clinical staff shall exercise primary responsibility for each individual at all times.

(4) Direct service to individuals shall be provided in accordance with an individual written plan of care, treatment and rehabilitation, specifying the nature of the conditions and the disabilities found to be present and those which are to be affected, relating these to the methods of care, treatment and rehabilitation to be provided, identifying the intended benefits of care and treatment and providing for appropriate review and revision.

(5) A single case record which contains current information regarding diagnosis, treatment and evaluation of results of care or treatment for each individual shall be available to all professional staff involved in the care or treatment of that individual.

(6) The programs provided by the unit shall include diagnostic and active, person-centered treatment, including but not limited to individual and group psychotherapy, acceptable interventional therapies, pharmacological therapies, psychiatric nursing care and a therapeutic milieu. In addition, in order to provide alternatives to inpatient care and a continuum of support and care beyond inpatient stay, a general hospital shall, either within its facility or by affiliation with or referral to other public or nonprofit or other approved agencies, assure access for individuals, as clinically appropriate, to partial hospitalization services, outpatient and crisis and emergency services. The functions of the partial hospital services and outpatient programs shall closely relate to the inpatient unit, be established by written agreement if not provided by the psychiatric inpatient unit, and shall be available to all individuals who might benefit.

(7) Hospitals shall utilize best practices and person-centered approaches on the screening, assessment, treatment and disposition of individuals presenting to the hospital with acute psychiatric needs necessitating emergency and inpatient services, in accordance with office guidance.

(8) The treatment program in those hospitals which provide services to children shall include the means for providing instruction to children under the age of 18, consistent with their age, needs, and clinical condition, as well as, the needs and circumstances within the facility or program, in techniques and procedures which will enable such individuals to report abuse and maltreatment.

(9) A nurse practitioner or registered nurse shall be on duty on the unit at all times.

(10) A physician shall be on duty at all times at the hospital, and other medical staff shall be available on call as needed.

(11) The unit shall have continuously in force a written policy on prescription and dispensing of medications, including appropriate time limits for prescriptions or drug orders and requirements for review by the physician responsible.

(12) All facilities accepting admissions pursuant to section 9.39 of the Mental Hygiene Law shall demonstrate the capacity to, when appropriate, control the access to and exit from units or areas of units in which individuals admitted pursuant to section 9.39 reside.

(b) Admissions.

(1) All admissions shall be conducted in accordance with the provisions of article 31 of the Mental Hygiene Law in a form and format designated by the office.

(2) The certified bed capacity of the unit shall not be exceeded at any time. Provided, however, i n extraordinary circumstances, such capacity may be exceeded upon written approval of the office, on a situational and time-limited basis.

(3) A hospital shall accept for observation, diagnosis and treatment any suitable person presented for admission as provided in section 9.39 of the Mental Hygiene Law, regardless of the time of day or person referring such individual.

(4) If minors under the age of 18 are admitted to the hospital, they shall not be commingled with adults in areas of the unit where the adults reside, nor shall they receive services in groups which include adults. In extraordinary circumstances, such commingling may be permitted upon written approval of the Office, on a situational and time-limited basis.

(5) Admission requirements. When an individual is admitted to a unit, clinical staff shall:

(i) review documentation of assessments, treatment, and other services provided in referring outpatient, emergency, or hospital program;

(ii) review documentation of prior presentations to the hospital unit and attempt to obtain medical records from other hospitals where the individual received services;

(iii) in accordance with HIPAA and section 33.13 of the Mental Hygiene Law, attempt to obtain the authorization of the individual or someone authorized to make health care decisions on the individual's behalf to access, use and disclose personal health information from collaterals or other data sources as outlined in this subdivision. If the authorization of the individual cannot practicably be obtained due to incapacity or emergency circumstance, unit staff may, in the exercise of professional judgment, determine whether the access, use, or disclosure is necessary to prevent imminent, serious harm to the individual. If so, only that personal health information that is necessary to protect the individual from the anticipated harm or which is in the best interest of the individual may be accessed, used, or disclosed. The reasons for the access, use, or disclosure must be appropriately documented in the clinical record;

(iv) attempt to obtain collateral information on all admitted individuals;

(v) review information in PSYCKES regarding admitted individuals regarding prior psychiatric and medical history and contact information for outpatient treatment teams and care managers with consent as required. In the event of incapacity or emergency circumstance, staff may temporarily access a PSYCKES clinical profile for the limited purposes authorized by this section and in accordance with PSYCKES policy or as authorized by other policy, law or regulation;

(vi) review information in any other available information network databases regarding admitted individuals with consent as may be required by the database policy or as authorized by other policy, law or regulation; and

(vii) check to see if the individual has a PAD or other Wellness Plan and preferred contacts in PSYCKES. Staff shall obtain consent as required to access the full view of the PAD, Wellness Plan, or preferred contacts. In the event of incapacity or emergency circumstance, staff may temporarily access a PSYCKES clinical profile, for the limited purposes authorized by this section and in accordance with PSYCKES policy or as authorized by other policy, law or regulation. If the individual does not have PAD, clinical staff shall provide a copy and explanation of a PAD. If the individual chooses to complete a PAD, it shall be placed in their chart.

(6) Screening requirements on admission. The following screenings shall take place on admission and documented in the individual's chart:

(i) All individuals shall be screened for suicide risk using a validated instrument. Positive screens shall be followed by a suicide risk assessment by a licensed professional trained in assessing suicide risk.

(ii) Each hospital shall have policies regarding violence risk screening and assessment. All individuals shall be screened, and the hospital policy shall describe a process for subsequent assessment and intervention in the case of a positive screen. As part of the screening, all individuals shall be asked about access to firearms or other weapons.

(iii) All individuals above the age of 12 shall be screened for substance use using a validated instrument. Positive screens shall be followed by an assessment for high risk substance use and substance use disorder by a licensed professional or CASAC working within their scope of practice.

(iv) A determination shall be made as to whether an individual has complex needs.

(1) All discharges shall be conducted in accordance with the provisions of section 29.15 of the Mental Hygiene Law, in a form and format designed by the office.

(2) The discharge plan shall be developed through shared decision making in a person-centered process. The discharge plan shall reflect individual strengths and level of social support and address psychiatric, substance use disorder, chronic medical, and social needs. The plan shall also address relevant concerning information obtained from collateral sources of information.

(3) For discharges of individuals with complex needs, the discharging unit shall provide a verbal clinical sign-out on the day of discharge, or as soon as possible thereafter, to the receiving outpatient behavioral health treatment program and if applicable, the residential program licensed or funded by the office or Office of Addiction Services and Supports, Office for Persons with Developmental Disabilities or the Department of Health, where the individual will reside. This must be done in accordance with section 33.13 of the Mental Hygiene Law.

(4) The unit shall send a discharge summary detailing the presenting history of present illness (HPI), hospital course, and other relevant information to the outpatient, residential, or long-term care treatment program(s) within seven days of discharge in accordance with section 33.13 of the Mental Hygiene Law.

(5) Prior to discharge, and in accordance with section 33.13 of the Mental Hygiene Law, the hospital shall schedule and confirm a follow up appointment with an identified provider to occur within seven calendar days following discharge. If, after making diligent efforts, a hospital cannot identify an aftercare provider with an available appointment within seven calendar days, the hospital shall document its efforts and schedule the appointment for as soon as possible thereafter. A referral to a walk-in intake clinic is insufficient to meet this requirement. Individuals who are leaving the hospital against medical advice, or who state they do not wish to receive aftercare services, shall be provided information about available treatment options and have an appointment scheduled whenever possible.

(6) For individuals with complex needs enrolled in outpatient or residential care management, the unit shall coordinate discharge plan details and timing with care managers, including supporting on unit predischarge visits.

(7) For eligible individuals with complex needs who are not enrolled in intensive care management or are enrolled in care management but need intensive care management, hospital staff shall make a referral to an intensive care management provider, in accordance with office guidance.

(8) All individuals shall be screened for suicidality prior to their discharge. Individuals with an elevated risk of self-harm or suicide shall have a community suicide safety plan completed before discharge. Lethal means shall be identified and a plan for restriction addressed in the safety plan. The unit shall document their work with collaterals to implement the plan to restrict lethal means and confirm completion prior to discharge.

(9) Discharge of individuals with an elevated risk of violence shall include, to every extent possible, close collaboration with the county DCS if applicable, current and new outpatient treatment providers, residential providers if applicable, and school if applicable, to incorporate strategies to address violence risk factors and access to weapons into the overall discharge plan in accordance with section 33.13 of the Mental Hygiene Law.

(10) When determining whether an individual is ready for discharge and the most appropriate discharge setting, the whole clinical presentation and history, as well as the availability of existing services in the individual's community, shall be considered.

(11) Individuals who meet criteria for any substance use disorder shall be offered pharmacological interventions, if appropriate, and referred to a new or existing provider who can continue treatment for their substance use disorder.

(12) Individuals who require treatment with an antipsychotic medication but have history of difficulty with consistently taking oral medications, shall be considered through shared decision making, for treatment with a long-acting injectable medication.

(13) A hospital shall be prohibited from discharging any person with serious mental illness to a transitional adult home, as defined in regulations of the Commissioner of Health, unless the person was a resident of the home immediately prior to their current period of hospitalization.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.7 Staffing

(a) The governing body shall continuously employ an adequate number of appropriately qualified staff to effectively carry out the program of examination, diagnosis, care, treatment and rehabilitation. Suitable provisions must be made for the protection of patients through the use of adequate staff. All facilities accepting admissions pursuant to section 9.39 of the Mental Hygiene Law shall have available at all times an adequate number of physicians experienced in the diagnosis and treatment of persons likely to seriously harm themselves or others. A written rationale for the staffing pattern utilized shall be prepared, clearly specifying any regular use of personnel whose primary duty assignments are elsewhere in the hospital, for approval by the Office of Mental Health. The written rationale shall include a plan for appropriate supervision of staff and volunteers. The plan shall include procedures for periodic supervisory conferences for staff and volunteers and procedures for written performance evaluations consistent with collective bargaining requirements.

(b) The director and all staff physicians shall be currently registered and licensed to practice medicine in the State of New York; their qualifications shall be reported to the office at the time of their employment.

(1) The unit shall not permit physicians in training to perform a service for which a license is required by the State of New York except as a part of an approved training program and unless authorized on a temporary certificate to practice medicine at the hospital and they are under the direct control and supervision of a currently registered and licensed physician.

(ii) With respect to the care of persons eligible for health insurance and medical assistance only, training programs must comply with the requirements of applicable rules and regulations of the Secretary of Health and Human Services pertaining to resident, intern and medical student training programs enacted pursuant to the Health Insurance for the Aged Act.

(2) All direct service, other than in an emergency, provided by interns, house officers, residents or physicians with equivalent titles must be provided as specified in paragraph (1) of this subdivision or must be provided by a physician currently registered and licensed to practice in New York State.

(c) The nursing service shall be under the direction of a nurse practitioner or registered nurse experienced in the care of patients with mental illness and in the administration of a psychiatric nursing service.

(d) All staff members providing services as members of professions, the practice of which is by law required to be licensed, certified or registered, shall file documentation of compliance with such applicable law with the governing body; this documentation shall be retained on file and made available to the office upon request.

(e) All staff members providing services as members of professions, the practice of which does not by law require licensure, certification or registration, shall file documentation of their training and experience with the governing body.

(f) All other program staff shall have qualifications appropriate to their assigned responsibilities as set forth in written policies of the governing body, and shall be subject to appropriate professional staff supervision.

(g) There shall be properly trained personnel adequate for continuous maintenance and housekeeping of the premises of the unit and for all other duties necessary for the clerical administration of the unit.

(h) The certificate holder shall submit reports to the office, as required, of the staff employed by and available in the unit.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.8 Premises

(a) Safety.

(1) All facilities shall be safe and suitable for the comfort and care of the individual. Facilities shall be maintained in a state of good repair and sanitation.

(i) A facility maintenance plan, including provision for routine inspections of the physical plant, shall be developed, maintained, and shall be immediately available for office review upon request.

(ii) A process shall be established and implemented at all facilities by which staff can notify the administration of any unsafe conditions. Facility staff shall routinely be made aware of such process.

(2) Patient areas for children, including bedroom space, shall be separate and distinct from patient areas for adults.

(b) Code compliance.

Facilities shall be and remain in compliance with applicable State and local building codes and regulations.

(1) Prior to construction or renovation of a facility, a building permit from the applicable local authority shall be obtained, and proof of same shall be made available to the office upon request.

(2) A current and effective copy of a Certificate of Occupancy at a facility shall be maintained at each facility location.

(1) Facilities shall be and remain in compliance with the provisions of the appropriate section(s) of the current recognized edition of the National Fire Prevention Association-101 Life Safety Code (LSC).

(3) Facilities shall be and remain in compliance with applicable sections of the Americans with Disabilities Act of 1990 (ADA) and implementing regulations (28 CFR Parts 35 and 36).

(d) Provisions for unplanned events.

(1) Facility administration shall evaluate the potential for specific unplanned events including but not limited to: power outages, heat loss, water shortages, extreme temperatures, floods, earthquakes, winds, fires and explosions.

(2) Facilities shall have policies and procedures in place which establish a reaction plan with respect to management of the facility in the event of unplanned events and potential disasters.

(i) Such policies and procedures shall include provisions designed to ensure staff are made aware of, and are familiar with, the reaction plan.

(ii) The reaction plan shall be periodically reviewed and updated as needed.

(e) Interventional Therapies, including Electroconvulsive therapy (ECT).

(1) Facilities administering ECT or other interventional therapies shall have a treatment room and recovery space that is specifically dedicated for th e service and which meets applicable Federal and State safety and health standards and applicable standards of practice.

(2) Facilities administering ECT or other interventional therapies shall remain current with standards of practice supported by the American Psychiatric Association related to treatment and administration of this service consistent with such standards.

(3) ECT may not be used as an emergency procedure.

(4) No facility shall use restraint or seclusion without a written plan for the use of restraint or seclusion in accordance with section 526.4 of this Title.

(5) No facility shall use extraordinary risk procedures. Extraordinary risk procedures include, but are not limited to, experimental treatment modalities and aversive conditioning.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.9 Records and statistics

(a) Case records.

(1) There shall be an individual record for each person admitted to the psychiatric inpatient unit.

(2) Each case record shall include:

(i) legal admission documents;

(ii) identifying information on the individual and their family, and, as applicable, guardian;

(iii) source of referral, date of commencing service and name of staff member carrying overall responsibility for treatment and care;

(iv) initial, intercurrent and final diagnoses, including psychiatric, alcohol or substance use disorder or intellectual or developmental disability diagnoses in official terminology;

(v) reports of all diagnostic examinations and evaluations, including findings and conclusions;

(vi) reports of all special studies performed, including X-rays, clinical laboratory tests, developmental and psychological testing, electroencephalograms, psychometric tests;

(vii) record of communication with family, outpatient providers, and other significant sources of collateral information;

(viii) the individual written plan of care, treatment and rehabilitation prepared in accordance with section 580.6(a)(2) of this Part;

(ix) progress notes that are written, signed, and dated by all staff members having significant participation in the program of treatment and care;

(x) summaries of case conferences and special consultations;

(xi) notes which relate to special circumstances and untoward incidents including but not limited to, the use of any seclusion or restraints;

(xii) dated and signed prescriptions or orders for all medications with notation of termination dates;

(xiii) a closing summary of the course of treatment and care;

(xiv) autopsy findings if an autopsy is performed;

(xv) documentation of any referrals within the hospital or to another agency; and

(xvi) documentation of voluntary or involuntary status and other information as requested by the office .

(b) individual records shall be safeguarded for confidentiality and accessible only to authorized persons, and shall be otherwise maintained in accordance with applicable State and Federal laws and regulations governing the privacy of individually identifying health information.

(1) Such statistical and case record information shall be prepared and maintained as may be necessary for optimally effective operation of the unit and as may be required by the office.

(2) Admissions, discharges and other statistical and case record information shall be reported to the office as required and in a form and format designated by the office.

(3) Statistical reporting shall be the responsibility of an appropriately qualified employee whose name and title shall be made known to the office.

(4) Summaries of statistical information shall be reviewed at least annually by the governing body.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.10 Community relations

(a) The unit shall integrate its services with other services of the hospital and with other relevant community services for purposes of providing comprehensive and coordinating care.

(b) The governing body shall assure the availability of necessary services not provided by the psychiatric inpatient unit itself. In determining necessity, the governing body shall take account of social work services, clinical laboratory services, special medical or surgical diagnostic or treatment services, integrated care services, psychiatric partial hospitalization, psychiatric outpatient services and rehabilitation services, and care management services.

(c) The unit shall participate appropriately in local, areawide, regional and State planning related to treatment programs for persons with mental illness.

(d) Significant changes in the psychiatric hospital program shall take into account studies of needs and resources in the geographic area served by the hospital.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 580.11 Managed Care Organizations

The facility shall cooperate with managed care organizations. Such cooperation shall include, but not be limited to:

(a) notifying the appropriate managed care organization of an admission for a behavioral health condition for which coverage is provided by Medicaid, Child Health Plus, Essential Plan, or any other government-sponsored or private coverage to an individual who is not also enrolled in the Medicare program or for individuals enrolled in the Medicare program, to an MCO providing services under title XVIII of the federal Social Security Act. Such notification shall be provided within two business days of such admission. When coverage cannot be determined at the time of admission, notification shall be provided as soon as practicably possible after confirmation of coverage;

(b) cooperating with utilization review activities;

(c) ensuring that the discharge plan for such an individual includes consideration of physical health needs and services;

(d) notifying such managed care organization within 24 hours of the discharge of such an individual or, for a discharge occurring on a Friday, Saturday, Sunday or public holiday, by 5:00 p.m. on the next business day following such discharge;

(e) receiving and providing physical and mental health information, pursuant to section 33.13(d) of the Mental Hygiene Law; and

(f) seeking to obtain, such individual's consent to receive and provide information regarding substance use disorder treatment as may be required pursuant to federal law.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

Part 582 Operation Of Hospitals For Persons With Mental Illness

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.1 Background and intent

(a) This Part is intended to promote the application of the most effective methods, including the use of evidence-based practices, to assist persons diagnosed with mental illness achieve maximum recovery while assuring their safety and general well-being.

(b) The provisions of this Part shall apply to the inpatient services of a freestanding psychiatric facility that has been certified by the Office of Mental Health to provide such services. Inpatient services provided in psychiatric inpatient units of general hospitals shall be governed in accordance with Part 580 of this Title. This Part shall not apply to any facility established by article 7 or article 10 of the Mental Hygiene Law.

(c) The Mental Hygiene Law requires the certification of any facility operated by an individual, association, corporation, or public or private agency to provide examination, diagnosis, care, treatment, rehabilitation or training to anyone with a disorder or disturbance in behavior, feeling, thinking or judgment so severe as to require care and treatment. Recognizing the differences between the methods usually applied in the care and treatment of persons with mental illness and persons with intellectual or developmental disabilities, the office intends this Part to apply only to inpatient services provided by hospitals for persons with mental illness.

(d) This Part prescribes standards for certification. Certification of itself does not confer eligibility to receive financial support from any governmental source.

(e) It is the intention of this Part to provide for a person-centered process, which, to the maximum extent possible, an individual participates in the planning of their services and makes informed choices about the services and supports that they receive. Compliance with this Part shall ensure that services are collaborative in nature and based on the individual's interests, preferences, strengths, and needs, are designed to empower the individual by fostering skills to achieve desired personal relationships, community participation, dignity, and respect and that the individual is satisfied with activities, supports, and services.

(f) It is the intent of this Part to foster increased responsibility of hospitals for persons with mental illness to evaluate and review their own services. However, such hospitals must: prepare an adequate plan for services which addresses modalities of care within the realm of behavioral healthcare and its associated comorbidities; have and reinforce staff training rooted in mental health services and promoting active treatment and recovery-oriented care; ensure staff have appropriate credentials and commensurate experience with the locus of care where they are working; promote patient rights shared decision-making, and person-centered care; define clear goals for admission and discharge preparedness; and, establish organizational policies and procedures which will facilitate implementation of the plan.

(g) Section 582.8 of this Part supersedes Part 77 of this Title.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.2 Legal base

(a) Section 31.02 of the Mental Hygiene Law prohibits any individual, association, corporation, or public or private agency from operating a residential facility, hospital or institution for the examination, diagnosis, care, treatment, rehabilitation or training of persons with mental disabilities, including mental illness, unless a operating certificate has been obtained from the commissioner. Sections 31.07, 31.09, 31.13 and 31.19 further authorize the commissioner or their representatives to examine and inspect such facilities to determine their suitability and proper operation. Sections 31.16 and 31.17 authorize the commissioner to suspend, revoke or limit any operating certificate.

(c) Section 31.35 of the Mental Hygiene Law provides that each provider of mental health services subject to its requirements shall request, through the Office of Mental Health, a criminal history background check for each prospective operator, employee, or volunteer of such provider of services.

(d) Section 29.15 of the Mental Hygiene Law establishes requirements for the discharge or conditional release of individuals from hospitals operated by the Office of Mental Health or from psychiatric inpatient services subject to licensure by such office.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.4 Certification

(a) No hospital for persons with mental illness may be operated without a valid operating certificate issued by the New York State Office of Mental Health.

(b) Application for new and renewal certificates shall be submitted as directed by the office in accordance with Parts 551 and 573 of this Title.

(c) A certificate valid for a period not to exceed three years shall be issued to hospitals which satisfactorily meet the conditions stated in this Part. The duration of the operating certificate shall be based upon the degree to which the unit meets applicable regulations and standards, upon review of the office.

(d) The current certificate shall be framed and displayed in a conspicuous place which is readily accessible to the public.

(e) Certificates shall remain the property of the office and expired, invalidated, revoked or terminated certificates shall be returned to the office.

(f) The certificate holder shall obtain prior approval by the office for all projects subject to prior approval review in accordance with Part 551 of this Title.

(g) Pursuant to Part 551 of this Title, the certificate holder shall notify the office of any intention to terminate voluntarily its services to persons with mental illness. This notice of intention to terminate voluntarily shall include a detailed statement of the actions which will be taken to assure appropriate referral of persons receiving care or treatment, to preserve the confidentiality and availability of records, and to settle financial accounts according to preexisting individual arrangements. No program shall terminate its services until written approval from the office to do so is obtained and individuals have been appropriately transferred or discharged, and records have been appropriately preserved and stored, all to the satisfaction of the office. Failure to obtain the required approval from the office may subject the certificate holder to civil penalties.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.5 Organization and administration

(a) Organization.

(1) The governing body shall be responsible for the overall operation and management of the hospital.

(2) The governing body shall establish and maintain a current plan of organization for the hospital which clearly indicates lines of accountability, the nature of professional responsibility to be exercised according thereto, and the professional qualifications required.

(3) The governing body shall develop, and revise as necessary, written policies for the quantity, quality, scope, goals, objectives and evaluation of all programs, policies for the accomplishment of stated purposes, and personnel policies. Personnel policies shall prohibit discrimination on the basis of race or ethnicity, religion, color, creed, disability, sex, marital status, age, national origin, gender identity or sexual orientation. Such policies shall include but not be limited to:

(i) Policies governing affirmative action that are consistent with the affirmative action and equal employment opportunity obligations imposed by title VII of the Civil Rights Act, Federal Executive Order 11246, the Rehabilitation Act of 1973, section 504, as amended, and the Vietnam Era Veteran's Readjustment Act.

(ii) Personnel policies and procedures shall provide for verification of employment history, personal references, work record and qualifications. Such policies shall also provide for securing a signed sworn statement whether, to the best of their knowledge, the applicant has ever been convicted of a crime in this State or any other jurisdiction.

(iii) Written policies and procedures governing patient records that ensure confidentiality consistent with the Mental Hygiene Law, sections 33.13, 33.14 and 33.16, 45 C.F.R. parts 160 and 164 and which provide for appropriate retention of such records pursuant to this Part.

(iv) Written policies that ensure the protection of patients' rights. At a minimum these policies shall establish and describe a patient grievance procedure. The provider shall post a statement of patients' rights in a conspicuous location easily accessible to the public. The statement shall be provided in the individual's preferred language, and be accessible to the blind and visually impaired.

(4) The governing body shall establish written staff development and training policies which address orientation and ongoing staff development and training which shall include but not be limited to, behavioral management interventions, techniques and alternative methods of safely handling crisis situations, and safety and security procedures. In addition, in those hospitals serving children, staff training shall include the principles of child development and developmentally-appropriate interventions, family engagement, the laws and regulations governing child abuse reporting and the protection of children from child abuse and maltreatment. Such training in those hospitals serving children shall include preemployment orientation and continuing education.

(5) The governing body shall establish written volunteer policies and procedures. Such policies and procedures shall provide for screening of volunteers and verification of employment history, personal references, and work history; supervision of volunteers; training in accordance with paragraph (4) of this subdivision. Such policies shall also provide for securing a signed sworn statement whether, to the best of their knowledge, the volunteer has been convicted of a crime in this State or any other jurisdiction and shall include provisions implementing criminal history record checks in accordance with Part 550 of this Title.

(6) The governing body shall establish procedures to assure the health and safety of the individuals in the program and shall develop, implement, and regularly monitor clinical risk management programs including but not limited to reviews of the use of restraint and seclusion and treatment over objection, in order to protect the health and safety of individuals and enhance their quality of care.

(7) The governing body shall meet as often as necessary to properly execute is functions, and in no event less often than quarterly. Minutes of all official meetings of the governing body shall be maintained as permanent record of the decisions made in relation to the operation of the hospital.

(8) Ongoing direction and control of the program of the hospital shall be delegated by the governing body to a physician whose qualifications in psychiatry are appropriate to the program. For purposes of this Part, this person shall be known as the director.

(9) Administrative management of the hospital may be delegated by the governing body to an appropriately qualified administrator.

(b) Administration.

(2) The governing body shall cause to be made an annual audit of the financial condition and accounts of the hospital by a certified public accountant who is not a member of the governing body or an employee of the hospital.

(i) All admission policies shall prohibit discrimination on the basis of race or ethnicity, religion, creed, sex, age, national origin, sexual orientation, gender identity, physical disability, previous hospitalization in a licensed or State-operated psychiatric facility or ability to pay fees, provided, however, nothing in this subparagraph shall be interpreted to prevent a facility from making admission or discharge decisions based upon the functional, clinical and behavioral needs of a n individual which are relevant to its program.

(ii) No facility shall deny care and treatment to, or otherwise discriminate against, persons who are Limited English Proficient, deaf or hard-of hearing, in accordance with section 527.4 of this Title.

(5) The governing body shall appoint a special review committee, including members of the professional clinical staff, which shall:

(ii) review and evaluate incidents and extra-risk procedures in accordance with Part 524 of this Title and the plan;

(iv) include, either on a regular membership basis or by special arrangement as indicated, the participation of appropriately qualified and experienced physicians; and

(v) meet as often as necessary to properly execute its functions, and in no event less often than quarterly, keeping written minutes of its deliberations and submitting reports to the governing body as necessary.

(6) The governing body shall provide for the following in those hospitals which provide services to children:

(i) procedures for notification of the child's parent or guardian of alleged child abuse or maltreatment involving the child or other incidents as required by law, including but not limited to Mental Hygiene Law section 33.23 and 33.25; and

(ii) procedures for the proper reporting of all incidents of alleged child abuse or maltreatment as follows, in accordance with the Mental Hygiene Law and Part 524 of this Title:

(a) to the Statewide Central Register of Child Abuse and Maltreatment immediately;

(b) to the appropriate Office of Mental Health field office, within two weeks, using forms designated by the Office of Mental Health;

(d) to the Mental Hygiene Legal Service within the next working day.

(7) The governing body shall cause to be written, made known to all employees and maintain current a plan for safeguarding all individuals in the event of a major natural disaster or civil disturbance.

(i) provision of budgeting and planning data as requested by the local governmental unit;

(ii) identification of the population being served by the facility;

(iii) identification of the geographic area being served by the facility;

(iv) description of the facility's relationship to other providers of services who serve the same geographic area, including, but not limited to, written agreements to ensure expeditious access to programs by persons who need them. At a minimum, these agreements shall provide a process for prompt referral, evaluation, and, as necessary, admission to cooperating programs; specify mechanisms for coordinated development of service plans for individuals being served by more than one program; and provide a mechanism for sharing information about individuals being served; and

(v) attendance at planning meetings as may reasonably be required by the local governmental unit.

(1) If any children of legal school age are served, an appropriate instructional program approved by the New York State Education Department shall be made available to them by the hospital.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.6 Program

(a) General.

(1) The program of services shall be provided through a person-centered process with shared decision making.

(3) The program of services shall be provided in accordance with the principle of continuity of care whereby a single number of the professional clinical staff shall exercise primary responsibility for each individual at all times.

(4) Direct service to individuals shall be provided in accordance with an individual written plan of care and rehabilitation, specifying the nature of the conditions and the disabilities found to be present and those which are to be affected, relating these to the methods of care, treatment and rehabilitation to be provided, identifying the intended benefits of care and treatment, and providing for appropriate review and revision.

(5) A single case record which contains current information regarding diagnosis, treatment, and evaluation of results of care or treatment for each individual shall be available to all professional staff involved in the care or treatment of that person.

(6) The programs provided by the hospital shall include diagnostic and active treatment, including but not limited to individual and group psychotherapy, acceptable interventional therapies, pharmacological therapies, psychiatric nursing care and a therapeutic milieu.

(7) Hospitals shall utilize best practices and person-centered approaches on the screening, assessment, treatment, and disposition of individuals presenting to the hospital with acute psychiatric needs necessitating emergency and inpatient services, in accordance with office guidance.

(8) A physician and a nurse shall be on duty at the hospital at all times, and other medical staff shall be available on call as needed.

(9) The hospital shall have continuously in force a written policy regarding prescription dispensing and administration of medications, including appropriate time limits for prescriptions or drug orders, requirements for review by the physician responsible, and the use of a formulary.

(b) Admissions.

(1) All admissions shall be conducted in accordance with the provisions of article 31 of the Mental Hygiene Law in a form and format designated by the office.

(2) The certified bed capacity of the hospital shall not be exceeded at any time. Provided, however, in extraordinary circumstances, such capacity may be exceeded upon written approval of the office, on a situational and time-limited basis.

(3) If minors under the age of 18 are admitted to the hospital, they shall not be commingled with adults in areas of the hospital where the adults reside, nor shall they receive services in groups which include adults. In extraordinary circumstances, such commingling may be permitted upon written approval of the office on a situational and time-limited basis.

(4) Admission requirements. When an individual is admitted to a hospital, clinical staff shall:

(i) review documentation of assessments, treatment, and other services provided in referring outpatient, emergency, or hospital program;

(ii) review documentation of prior presentations to the hospital unit and attempt to obtain medical records from other hospitals where the individual received services;

(iii) in accordance with HIPAA and section 33.13 of the Mental Hygiene Law, attempt to obtain the authorization of the individual or someone authorized to make health care decisions on the individual's behalf to access, use and disclose personal health information from collaterals or other data sources as outlined in this subdivision. If the authorization of the individual cannot practicably be obtained due to incapacity or emergency circumstance, unit staff may, in the exercise of professional judgment, determine whether the access, use, or disclosure is necessary to prevent imminent, serious harm to the individual. If so, only that PHI that is necessary to protect the individual from the anticipated harm or which is in the best interest of the individual may be accessed, used, or disclosed. The reasons for the access, use, or disclosure must be appropriately documented in the clinical record;

(iv) attempt to obtain collateral information on all admitted individuals;

(v) review all individuals in PSYCKES regarding admitted individuals prior psychiatric and medical history and contact information for outpatient treatment teams and care managers with consent as required. In the event of incapacity or emergency circumstance, staff may temporarily access a PSYCKES clinical profile for the limited purposes authorized by this section and in accordance with PSYCKES policy or as authorized by other policy, law or regulation;

(vi) review information in any other available information network databases regarding admitted individuals with consent as may be required in accordance with the database policy or as authorized by other policy, law or regulation; and

(vii) check to see if the individual has a PAD or other Wellness plan and preferred contacts in PSYCKES. Staff shall obtain consent as required to access the full view of PAD, Wellness Plan, or preferred contacts. In the event of incapacity or emergency circumstance, staff may temporarily access a PSYCKES clinical profile, for the limited purposes authorized by this section. If the individual does not have a PAD, clinical staff shall provide a copy and explanation of a PAD. If the individual chooses to complete a PAD, it shall be placed in their chart.

(5) Screening requirements on admission. The following screenings shall take place on admission and documented in the individual's chart:

(iv) A determination shall be made as to whether an individual has complex needs.

(1) All discharges shall be conducted in accordance with the provisions of section 29.15 of the Mental Hygiene Law, in a form and format designed by the office.

(3) For discharges of individuals with complex needs, the discharging unit shall provide a verbal clinical sign-out on the day of discharge, or as soon as possible thereafter, to the receiving outpatient behavioral health treatment program and if applicable, residential program licensed or funded by the office or Office of Addiction Services and Supports, Office for Persons with Developmental Disabilities or the Department of Health where the individual will reside. This must be done in accordance with section 33.13 of the Mental Hygiene Law.

(7) For eligible individuals with complex needs who are not enrolled in intensive care management or are enrolled in care management but need more intensive care management, hospital staff shall make a referral to an intensive care management provider, in accordance with office guidance.

(11) Individuals who meet criteria for any substance use disorder shall be offered appropriate pharmacological interventions and referred to a new or existing provider who can continue treatment for their substance use disorder.

(12) Individuals who require treatment with an antipsychotic medication but have history of difficulty with consistently taking oral medications, shall be considered, through shared decision making, for treatment with a long-acting injectable medication.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.7 Staffing

(a) The governing body shall continuously employ an adequate number of appropriately qualified staff to carry out the program of examination, diagnosis, care, treatment and rehabilitation effectively. A written rationale for the staffing pattern utilized shall be developed for approval by the Office of Mental Health. The written rationale shall include a plan for appropriate supervision of staff and volunteers. The plan shall include procedures for periodic supervisory conferences for staff and volunteers and procedures for written performance evaluations consistent with collective bargaining requirements.

(1) The hospital shall not permit physicians in training to perform a service for which a license is required by the State of New York except as a part of an approved training program and unless authorized by a temporary certificate to practice medicine at the hospital and they are at the time under the direct control and supervision of a currently registered and licensed physician.

(i) A training program to be approved shall be accredited by the Accrediting Committee for Graduate Medical Education (ACGME), the appropriate specialty boards or any other recognized approval body based on standards acceptable to the office.

(ii) With respect to the care of persons eligible for health insurance and medical assistance only, training programs shall comply with the requirements of applicable rules and regulations of the Secretary of Health and Human Services pertaining to resident, intern and medical student training programs enacted pursuant to Titles XVIII and XIX of the Social Security Act .

(2) All direct service, other than in an emergency, provided by interns, house officers, residents or physicians with equivalent titles shall be provided as specified in paragraph (1) of this subdivision or shall be provided by a physician currently registered and licensed to practice in New York State.

(c) The nursing service shall be under the direction of a nurse practitioner or registered nurse experienced in the care of individuals with mental illness and in the administration of psychiatric nursing services.

(d) The medical recordkeeping shall be under the direction of a registered records librarian or in accordance with consultation by a person eligible for registration by the American Medical Records Association.

(e) All staff members providing services as members of professions, the practice of which is by law required to be licensed, certified or registered, shall file documentation of compliance with the governing body; this documentation shall be retained on file and made available to the office upon request.

(f) All staff members providing services as members of professions, the practice of which does not by law require licensure, certification or registration, shall file documentation of their training and experience with the governing body.

(g) All other program staff shall have qualifications appropriate to their assigned responsibilities as set forth in written policies of the governing body, and shall be subject to appropriate professional staff supervision.

(h) There shall be properly trained personnel adequate for continuous maintenance and housekeeping of buildings, grounds, equipment, and for all other duties necessary for the administration of the hospital.

(i) The certificate holder shall submit reports to the office, as required, of the staff employed by and available in the hospital.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.8 Premises

(a) Safety.

(1) All facilities shall be safe and suitable for the comfort and care of the individual. Facilities shall be maintained in a state of good repair and sanitation.

(i) A facility maintenance plan, including provision for routine inspections of the physical plant, shall be developed, maintained, and shall be immediately available for office review upon request.

(ii) A process shall be established and implemented at all facilities by which staff can notify administration of any unsafe conditions. Facility staff shall routinely be made aware of such process.

(2) Patient areas for children shall be separate and distinct from patient areas for adults.

(b) Code compliance.

Facilities shall be and remain in compliance with applicable State and local building codes and regulations.

(1) Prior to construction or renovation of a facility, a building permit from the applicable local authority shall be obtained, and proof of same shall be made available to the office upon request.

(2) A current and effective copy of a Certificate of Occupancy at a facility shall be maintained at each facility location.

(2) Facilities shall be and remain in compliance with applicable sections of the current recognized edition of the Guidelines for Design and Construction of Health Care Facilities published by the American Institute of Architects (AIA), provided, however, that this provision shall apply only to facilities constructed, or which have undertaken major renovations, on or after April 1, 2010, or the effective date of this paragraph, whichever is later. Facilities constructed, or which 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.

(3) Facilities shall be and remain in compliance with applicable sections of the Americans with Disabilities Act of 1990 (ADA) and implementing regulations (28 CFR parts 35 and 36).

(d) Provisions for unplanned events.

(2) Facilities shall have policies and procedures in place which establish a reaction plan with respect to management of the facility in the event of unplanned events and potential disasters.

(i) Such policies and procedures shall include provisions designed to ensure staff are made aware of, and are familiar with, the reaction plan.

(ii) The reaction plan shall be periodically reviewed and updated as needed.

(e) Fire safety.

(1) Training. Facilities shall provide fire safety training to all staff. Fire safety training shall address topics including, but not 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 that identify staff roles and locations where individuals shall assemble (i.e., assembly points).

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

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

(ii) Facilities shall 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 individuals to an assembly point as specified in the fire drill protocols. Consistent with Life Safety Code standards, in larger facilities that are subdivided into separate smoke compartments to limit the spread of fire and smoke and move individuals without leaving the building or changing floors, evacuation may include relocation of individuals 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 shall document and maintain records regarding fire drill performance which include an evaluation of the results of the fire drill, any corrective action that may be required, and completion of steps taken to achieve such corrective action.

(3) Tests and inspections. Facilities shall routinely test and inspect all fire safety equipment according to applicable codes, regulations and manufacturer's recommendations.

(i) All tests and inspections, and the dates conducted, shall be documented.

(ii) Facilities shall immediately correct, and document correction of, any deficiency noted during inspection and testing.

(4) Prohibited items.

(i) The following items are prohibited from use within any buildings on the grounds of the facility:

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

(b) portable electric hot plates; and

(c) barbeque grills, which may only be used outside the building if located further than 30 feet away of any building structure, including overhangs, canopies or awnings.

(ii) The use of portable space heating devices is prohibited in patient sleeping and treatment areas of the facility, as well as in facility administrative 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:

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

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

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

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

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

(5) Smoking. Facilities shall 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.

(f) Interventional therapies, including Electroconvulsive therapy (ECT).

(1) Facilities administering ECT or other interventional therapies shall have a treatment room and recovery space that is specifically dedicated for th e service and which meets applicable federal and State safety and health standards and applicable standards of practice.

(3) ECT may not be used as an emergency procedure.

(4) No facilities shall use restraint or seclusion without a written plan for the use of restraint or seclusion in accordance with section 526.4 of this Title.

(5) No facilities shall use extraordinary risk procedures. Extraordinary risk procedures include, but are not limited to, experimental treatment modalities and aversive conditioning.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.9 Records and statistics

(a) Case records.

(1) There shall be an individual record for each person admitted to the hospital.

(2) Each case record shall include:

(i) legal admission documents;

(ii) identifying information on the individual and their family, and as applicable, guardian;

(iii) source of referral, date of commencing service and name of staff member carrying overall responsibility for treatment and care;

(iv) initial, intercurrent and final diagnoses including psychiatric, alcohol or substance use disorder, or intellectual or developmental disability diagnoses in official terminology;

(v) reports of all diagnostic examinations and evaluations, including findings and conclusions;

(vi) reports of all special studies performed, including X-ray, clinical laboratory tests, developmental and psychological testing, electroencephalograms, and psychometric tests;

(vii) record of communication with family, outpatient providers, and other significant sources of collateral information;

(viii) the individual written plan of care, treatment and rehabilitation prepared in accordance with section 582.6(a)(2) of this Part;

(ix) progress notes written, dated, and signed by all staff members having significant participation in the program of treatment and care;

(x) summaries of case conferences and special consultations;

(xi) notes which relate to special circumstances and untoward incidents including but not limited to, the use of any seclusion or restraints;

(xii) dated and signed prescriptions or orders for all medications, with notation of termination dates;

(xiii) a closing summary of the course of treatment and care;

(xiv) autopsy findings if an autopsy is performed;

(xv) documentation of any referrals within the hospital or to another agency; and

(xvi) documentation of voluntary or involuntary status and other information as requested by the office.

(b) Patient records shall be safeguarded for confidentiality and be accessible only to authorized persons and shall be otherwise maintained in accordance with applicable State and federal laws and regulations governing the privacy of individually identifying health information.

(1) Such statistical and case record information shall be prepared and maintained as may be necessary for optimally effective operation of the hospital, and as may be required by the office.

(2) Admissions, discharges and other statistical and case record information shall be reported to the office as required and in a form and format designated by the office. Statistical reporting shall be the responsibility of an appropriately qualified employee, whose name and title shall be made known to the office.

(3) Summaries of statistical information shall be reviewed at least annually by the governing body.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.10 Community relations

(a) The hospital shall integrate its services with other relevant community services for purposes of providing comprehensive and coordinated care.

(b) The hospital shall assure, through agreements with other community resources, the availability of necessary services not provided at the hospital. In determining necessity, the hospital shall take account of clinical laboratory services, special medical, diagnostic or treatment services, partial hospitalization, care management and rehabilitation services.

(c) The hospital shall participate appropriately in local, areawide, regional and State planning related to treatment programs for persons with mental illness.

(d) Significant changes in the hospital program shall take into account studies of needs and resources in the geographic area served by the hospital.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 582.11 Managed Care organizations

The facility shall cooperate with Managed Care organizations (MCO). Such cooperation shall include, but not be limited to:

(a) notifying the appropriate MCO organization of an admission for a behavioral health condition for which coverage is provided by Medicaid, Child Health Plus, Essential Plan, or any other government-sponsored or private coverage to an individual who is not also enrolled in the Medicare program or for individuals enrolled in the Medicare program, to an MCO providing services under title XVIII of the federal Social Security Act. Such notification shall be provided within two business days of such admission. When Medicaid coverage cannot be determined at the time of admission, notification shall be provided as soon as practicably possible after confirmation of coverage;

(b) cooperating with utilization review activities;

(c) ensuring that the discharge plan for such an individual includes consideration of physical health needs and services;

(d) notifying such MCO organization no later than 24 hours subsequent to the discharge of such an individual or by 5:00 p.m. the next business day following Friday, Saturday, Sunday and public holiday discharges;

(e) receiving and providing physical and mental health information, pursuant to section 33.13 (d) of the Mental Hygiene Law; and

(f) seeking to obtain, such individual's consent to receive and provide information regarding such individual's substance use disorder treatment as may be required pursuant to federal law.

History

Amended New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024

Part 583 Residential Treatment Facilities For Children And Youth; Eligibility

N.Y. Comp. Codes R. & Regs. Tit. 14 § 583.1 Background and intent

(a) Chapter 947 of the Laws of 1981 authorized the establishment of residential treatment facilities for children and youth.

(b) The purpose of residential treatment facilities for children and youth (RTF) is to provide comprehensive and intensive mental health services under the supervision of a physician for children and youth who have attained their 5th birthday and have not, in most cases, attained their 21st birthday and who are in need of inpatient treatment in a residential setting. Such RTF shall be consistent with the federal conditions of participation with Psychiatric Residential Treatment Facilities (PRTF)

(c) The purpose of these regulations is to provide for the establishment of procedures for accessing residential treatment facility services, a Medicaid eligible service; to articulate the criteria for determining eligibility of an individual to apply for admission or transfer to a specific residential treatment facility for children and youth; and to specify the procedures to be used in determining eligibility and priority for admission or transfer to a residential treatment facility for children and youth.

(d) The purpose of the procedures for accessing residential treatment facility services is to ensure uniform access to residential treatment facilities for children and youth regardless of the current setting or source of referral of a child.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 583.2 Legal base

(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 their jurisdiction and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the retention of services for the mentally ill pursuant to an operating certificate.

(b) Section 9.51 of the Mental Hygiene Law provides that the Office of Mental Health will establish standards and priorities for residential treatment facilities for children and youth admissions and will evaluate medical necessity for applicants or recipients of medical assistance pursuant to title eleven of article five of the social services law applying to access residential treatment facility services.

(c) Section 31.26(c) of the Mental Hygiene Law provides for the commissioner to authorize the operation of residential treatment facilities for children and youth. The statute also provides that the commissioner shall have the power to adopt rules and regulations governing the establishment and operation of residential treatment facilities for children and youth.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 583.3 Applicability

(a) These regulations apply to the application process for access to available residential treatment facility services for children and youth.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 583.5 Residential Treatment Facility (RTF) Eligibility and Authorization Requirements

(a) Applications for an eligibility determination and authorization to access residential treatment facility services shall be in a form and format specified by the office or commissioner's designee.

(b) In order for a child or youth to be found eligible and authorized to access residential treatment services they must meet the following criteria:

(1) be between the age of 5 years old and 20 years old;

(2) have an intelligence quotient equal to or greater than 51;

(3) meet the criteria for voluntary admission in accordance with section 9.13 of the Mental Hygiene Law;

(4) have a current primary diagnosis of a designated mental illness;

(5) meet criteria for serious emotional disturbance; and

(6) meet all medical necessity criteria for residential treatment facility services.

(i) Medical necessity criteria determinations shall comply with the Code of Federal Regulations, title 42, section 441.153 as incorporated by reference in Part 502.2 of this Title. Medical necessity criteria shall also meet the CFR 42 section 441.152 Certification of Need requirements where the child or youth is an applicant or recipient of medical assistance pursuant to Social Services Law, title 11, article 5 as incorporated by reference in Part 502.2 of this Title.

(ii) Medical Necessity criteria includes the following:

(a) outpatient, community-based, and other out of home interventions available, do not meet the treatment needs of the child or youth;

(b) the child or youth is experiencing a severity of psychiatric need which requires proper care and treatment of the child or youth's psychiatric condition on an inpatient basis in a residential treatment facility under the direction of a physician;

(c) care and treatment provided by residential treatment facility services can reasonably be expected to improve the child or youth's condition or prevent further regression so that residential treatment facility services will no longer be needed, provided that a poor prognosis shall not in itself constitute grounds for a denial of determination of eligibility if treatment in a residential treatment facility offers can be expected to effect a change in prognosis.

(c) Eligibility criteria to obtain authorization to access residential treatment facility services delivered by a residential treatment facility developed in collaboration with the office and the Office for People With Developmental Disabilities, to serve children or youth with a designated mental illness and an intellectual and/or development disability, shall be exempt from paragraphs (2) and (4) of subdivision (b) of this section.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 583.6 Responsibilities of the Office or Commissioner's designee

(a) The office or the commissioner's designee shall receive all applications for authorization to access residential treatment facility services.

(1) The office or the commissioner's designee shall review applications for authorization to access residential treatment facility services for completeness in accordance with standards and procedures established by office or commissioner's designee within seven business days of receipt of the application.

(b) Prior to a residential treatment facility admission, and as frequently as the office or commissioner's designee deems necessary, the office or commissioner's designee shall evaluate each complete application for authorization by a child or youth applicant or recipient of medical assistance, pursuant to Social Services Law title 11, article 5, to determine their eligibility for accessing residential treatment facilities. The eligibility review to determine whether such child or youth meets the eligibility criteria shall be conducted in accordance with this Part and as specified in standards and procedures established by the office or commissioner's designee.

(1) The eligibility reviews shall include an assessment of educational needs. When an assessment of a child or youth's educational needs is required and is not available from a committee on special education, the office or commissioner's designee shall request such assessment from the appropriate committee on special education, in accordance with Education Law section 4003.5. For the purposes of this Part, the appropriate committee on special education shall be the committee on special education of the school district of residence at the time of the application for eligibility.

(c) Upon completion of the eligibility review, the office or the commissioner's designee shall notify the child or youth, child or youth's legally authorized representative, the referral source, and Local Government Unit in writing that:

(1) the child or youth meets the eligibility criteria and has authorization to access residential treatment facility services; or

(2) the application requires additional documentation in order to make a determination regarding eligibility for authorization to access residential treatment facility services. Such notice shall include the timeframe in which the additional information must be submitted for consideration to the office or commissioner's designee. Additional time to submit documentation may be requested in writing to the office or commissioner's designee, by the child or youth's legally authorized representative, for a period not to exceed an additional 30 calendar days from the date on the notification. Such extension, if approved, will be confirmed by the office or commissioner's designee in writing. If additional information is not submitted in the requested timeframe or extended time frame, the office or commissioner's designee shall consider the application incomplete and issue an administrative denial; or

(3) the child or youth does not meet eligibility criteria and is not authorized to access residential treatment facility services.

(i) The office or commissioner's designee shall provide the child or youth, child or youth's legally authorized representative, the referral source, and Local Government Unit with a notice detailing the right to request a reconsideration of the denial within 30 days of the notice date.

(ii) If a request for reconsideration is received within 30 days of the notice date, the office or commissioner's designee shall complete a reconsideration of eligibility review.

(iii) After the reconsideration review is completed, the office or the commissioner's designee shall notify the child or youth, child or youth's legally authorized representative, the referral source, and Local Government Unit in writing that:

(a) the child or youth meets the eligibility criteria and is authorized to access residential treatment facility services; or

(b) the application requires additional documentation in order to make a determination regarding eligibility for authorization to access residential treatment facility services. Such notice shall include the timeframe in which the additional information must be submitted for consideration to the office or commissioner's designee. If additional information is not submitted in the requested timeframe the office or commissioner's designee shall consider the application incomplete and issue an administrative denial; or

(c) the child or youth does not meet eligibility criteria and is not authorized to access residential treatment facility services.

(1) The office or commissioner's designee shall inform the child or youth and the child or youth's legally authorized representative of the right to request a Medicaid fair hearing within 60 days of the notice.

(2) Such fair hearings shall be adjudicated in accordance with 18 NYCRR 3582.30 and 18 NYCRR 358-5, and any procedures used by the entity conducting the hearing.

(d) Where a child or youth receives an authorization to access residential treatment facility services and the child or youth has not been admitted to a residential treatment facility, or the authorization was subsequently suspended, the office or commissioner's designee shall conduct additional reviews to reconfirm eligibility in accordance with standards and procedures established by the office. If a child or youth is found eligible, the office or commissioner's designee shall issue an authorization and send the authorized application to the residential treatment facilities that would best be able to serve the child or youth's needs based upon the facility's admission criteria.

(1) To conduct a reconfirmation of eligibility review, the office or the commissioner's designee shall request a written update of the child or youth's status in a form, substance and timeframe to be established by the office or commissioner's designee. If a written update is not provided as required by the office or commissioner's designee, the application shall be considered incomplete and an administrative denial shall be issued.

(2) The office or commissioner's designee shall base its reconfirmation of eligibility on a review of the documentation provided.

(3) Notification of eligibility will be completed in accordance with subdivision (c) of this section (e) Where the office or commissioner's designee has authorized a child or youth for access to residential treatment facility services and the child or youth is expected to be temporarily unavailable for admission, the child or youth's authorization shall be suspended for a period of time as determined by the office. To end the suspension of an authorization, the office or commissioner's designee shall conduct a review to reconfirm eligibility in accordance with this subdivision (d) of this section.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

Part 584 Operation Of Residential Treatment Facilities For Children And Youth

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.1 Background and intent

(a) Chapter 947 of the Laws of 1981 authorized the establishment of residential treatment facilities for children and youth.

(b) The purpose of residential treatment facilities for children and youth is to provide comprehensive mental health services under the supervision of a physician for children and youth who have attained their 5th birthday and have not, in most cases, attained their 21st birthday and who are in need of inpatient treatment in a residential setting.

(1) present a likelihood of serious harm to others as defined in section 9.01 of the Mental Hygiene Law; or

(2) have a primary diagnosis of intellectual disability or developmental disability unless the residential treatment facility unit(s) was developed in collaboration by the Office of Mental Health and the Office for People With Developmental Disabilities to serve children with a designated mental illness and an intellectual and/or development disability.

(d) The purpose of these regulations is to describe requirements for the establishment and operation of residential treatment facilities for children and youth; outline the requirements for admissions, transfers and discharge; and specify the requirements for staffing, services, treatment planning, quality assurance and recordkeeping.

(e) These regulations provide for the active involvement, to the extent possible, of the family or guardian of a child or youth in all aspects of the care and treatment of that child or youth.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.2 Legal base

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

(b) 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.

(c) Section 31.02 of the Mental Hygiene Law prohibits any individual, association, corporation or public or private agency from operating a residential facility, hospital or institution for the examination, diagnosis, care, treatment, rehabilitation or training of persons with mental illness unless an operating certificate has been obtained from the commissioner of the Office of Mental Health.

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

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.3 Applicability

(a) These regulations apply to any provider of services which operates or proposes to operate a residential treatment facility for children and youth. Such facilities are a subclass of hospitals pursuant to section 1.03 of the Mental Hygiene Law.

(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 582 of this Title.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.5 Certification

(a) Each provider of services that intends to operate a residential treatment facility must be issued an operating certificate by the Office of Mental Health prior to the operation of the facility.

(b) Residential treatment facilities may only be operated by not-for-profit corporations.

(c) An operating certificate may be issued to a residential treatment facility which complies with the requirements of these regulations.

(d) The term of the operating certificate shall be determined by the Office of Mental Health, but in no event shall the term exceed three years.

(e) An operating certificate shall be issued for a residential treatment facility for a resident capacity of no fewer than 14 and no more than 56 residents; provided, however, that for the period commencing April 1, 2000 through September 30, 2016, bed capacity for facilities primarily serving New York City residents may be temporarily increased up to an additional ten beds over the maximum certified capacity with the prior approval of the Commissioner. In order to receive such approval, the residential treatment facility must demonstrate that the additional capacity will be used to serve those children and youth deemed most in need of RTF services.

(f) A residential treatment facility must provide the full range of services required by section 584.11 of this Part at a single location.

(g) An operating certificate may be limited, suspended, invalidated or revoked by the Office of Mental Health in accordance with the provisions of Part 573 of this Title. Certificates shall remain the property of the Office of Mental Health and invalidated or revoked certificates shall be returned to the Office of Mental Health.

(h) Each operating certificate will specify:

(1) the location of the residential treatment facility;

(2) the term of the operating certificate;

(3) any changes to be made in the operation of the residential treatment facility in order to retain the operating certificate; and

(4) the resident capacity of the residential treatment facility.

(i) In order to receive and retain an operating certificate, a provider of services shall:

(1) submit an application on such forms and such supporting documents as shall be required by the Office of Mental Health;

(2) frame and display the operating certificate within the residential treatment facility in a conspicuous place which is readily accessible to the public;

(3) cooperate with the Office of Mental Health during any review or inspection of the facility or program;

(4) make available to the Office of Mental Health or commissioner's designee upon request all documentation, files, reports, case records, or other materials required by this Part or requested by the Office of Mental Health in the course of visitation and inspection;

(5) undertake changes in the operation of the facility or program as required by the operating certificate;

(6) obtain prior approval of the Office of Mental Health in accordance with the procedures specified in Part 551 of this Title, to:

(i) change the physical location of the residential treatment facility or utilize additional physical locations;

(ii) initiate major changes in the program;

(iii) terminate the program or services in the program; or

(iv) change the powers or purposes set forth in the certificate of incorporation;

(7) comply with site selection requirements of section 41.34 of the Mental Hygiene Law if the residential treatment facility will have a resident capacity of 14 or fewer; and:

(i) is not located on the grounds of a residential facility licensed by another State agency; or

(ii) is not a residential facility licensed by another State agency at the time an application is submitted to the Office of Mental Health.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.6 Organization and administration

(a) The provider of services shall identify the individuals who have overall responsibility for the operation of the residential treatment facility. These individuals shall be known as the governing body. No individual shall serve as both a member of the governing body and of the paid staff of the residential treatment facility without the prior approval of the Office of Mental Health.

(b) The provider of services shall assure that the residential treatment facility has space, programs, staff and policies and procedures that are separately identifiable from any other programs which may be operated by the provider of services.

(c) The governing body shall meet on a regular basis, in no event less often than quarterly, and shall maintain written minutes of all meetings as a permanent record of the decisions made in relation to the operation of the residential treatment facility. The minutes shall be reviewed and approved by the governing body.

(d) The governing body shall approve a written plan or plans that, at a minimum, address the following aspects of the operation of the residential treatment facility:

(1) the goals and objectives of the residential treatment facility, including the admission and discharge criteria and a statement of the involvement of the family;

(2) the plan of organization that clearly indicates lines of responsibility;

(3) a written plan for services and staff composition which:

(i) includes the qualifications and duties of each staff position by title, and addresses all essential aspects of the operation of the residential treatment facility including clinical, administration, fiscal, clerical, housekeeping, maintenance, dietetic, and recordkeeping and reporting functions; and

(ii) specifies all services available through the residential treatment facility including the treatment program and environment;

(4) the written quality assurance plan; and

(5) the written utilization review plan.

(e) The governing body shall approve written policies and procedures of the residential treatment facility, including but not limited to:

(1) Admission, transfer, continued stay and discharge policies and procedures.

(2) The governing body shall develop, and revise as necessary, written policies for the quantity, quality, scope, goals, objectives and evaluation of all programs, policies for the accomplishment of stated purposes, and personnel policies. Personnel policies shall prohibit discrimination on the basis of race, color, creed, disability, sex, gender identity, marital status, age, national origin, sexual orientation, military status, domestic violence victim status, disability, pregnancy-related condition, predisposing genetic characteristics, prior arrest or conviction record or familial status. Personnel policies and procedures shall provide for verification of employment history, personal references, work record and qualifications, as well as requesting the Justice Center for the Protection of Persons with Special Needs to perform criminal history record checks in accordance with Part 550 of this Title.

(3) Staff training and development policies and procedures. Such policies and procedures shall address preemployment orientation, ongoing staff development and training which shall include child or youth abuse prevention and identification, safety and security procedures, the principles of child or youth development, use of physical intervention, techniques of group and child or youth management, the laws and regulations governing the protection of children from child abuse and maltreatment.

(4) The governing body shall establish written volunteer policies and procedures. Such policies and procedures shall provide for screening of volunteers and verification of employment history, personal references and work history; supervision of volunteers; training in accordance with paragraph (3) of this subdivision. Such policies shall also provide for requesting the Justice Center for the Protection of Persons with Special Needs to perform criminal history record checks in accordance with Part 550 of this Title.

(5) Prescription and administration of medication policies and procedures. Such policies and procedures shall be consistent with applicable Federal and State laws and regulations.

(6) Case record policies and procedures. Such policies and procedures shall ensure confidentiality of patient records in accordance with the Mental Hygiene Law and shall ensure appropriate retention of case records.

(f) The governing body shall review the written plan or plans and policies and procedures required pursuant to subdivisions (d) and (e) of this section at least annually and shall make appropriate amendments or revisions.

(g) The governing body may delegate responsibility for the day-to-day management of the residential treatment facility in accordance with the written plan of organization provided for in paragraph (d)(2) of this section.

(1) Ongoing direction may be delegated to an individual who shall be known as the director and who shall meet the qualifications specified in section 584.10(d) of this Part.

(2) The director shall be employed by the residential treatment facility at least one half of the hours of a fulltime employee.

(3) Administrative direction may be the responsibility of the director or may be delegated by the governing body to an individual who shall meet qualifications that are acceptable to the Office of Mental Health.

(h) The residential treatment facility shall participate with the local governmental unit in local planning processes. At a minimum, participation shall include:

(1) provision of budgeting and planning data as requested by the local governmental unit;

(2) identification of the population being served by the residential treatment facility;

(3) identification of the geographic area being served;

(4) description of the relationship to other providers of services which serve the same geographic area, including but not limited to written agreements to ensure expeditious access to programs by persons who need them. At a minimum, these agreements shall provide for prompt referral, evaluation and, as necessary, admission to cooperating programs, and for sharing information about residents being served; and

(5) attendance at planning meetings as may reasonably be required by the local governmental unit.

(i) The residential treatment facility shall provide for the following:

(1) an annual written evaluation of the residential treatment facility's attainment of its stated goals and objectives which indicates any required changes in policies and procedures;

(2) an annual audit of the financial condition and accounts of the residential treatment facility performed by a certified public accountant who is not a member of the governing body or an employee of the residential treatment facility;

(3) emergency evacuation plans for the building in which the residential treatment facility is located. Evacuation plans shall address emergencies resulting from fire as well as potential hazards in the geographic area in which the residential treatment facility is located; and

(4) up-to-date copies of any regulations, guidelines, manuals, or other information required by the Office of Mental Health.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.7 Admission, Continued Stay and discharge criteria

(a) Each residential treatment facility shall maintain written admission, continued stay and discharge criteria which are subject to the approval of the Office of Mental Health.

(b) The admission criteria must, at a minimum, provide that Office of Mental Health or commissioner's designee has determined that an individual child or youth is eligible and authorized to access residential treatment facility services pursuant to Part 583 of this Title.

(c) Any additional admission criteria must relate to factors of psychopathology, activities of daily living skills, age, gender, sex and intelligence quotient. Admission criteria must comply with any standards and procedures established by the office, and cannot discriminate based on race, color, creed, disability, sex, gender identity, marital status, age, national origin, sexual orientation, military status, domestic violence victim status, disability, pregnancy-related condition, predisposing genetic characteristics, prior arrest or conviction record or familial status.

(d) The continued stay criteria must, at a minimum, provide that the child or youth meets eligibility criteria established in Part 583 of the Title, and does not meet the residential treatment facility's discharge criteria.

(e) The discharge criteria must at a minimum provide that the child or youth has been evaluated and determined to no longer meet eligibility criteria pursuant to Part 583 of the Title. Age in and of itself is not an appropriate basis for discharge from a residential treatment facility, except that no child or youth may remain in a residential treatment facility after attaining the age of 22.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.8 Admission, transfer, continued stay, and discharge policies and procedures

(a) A residential treatment facility may only admit a child or youth that has an authorization for access to residential treatment facility services, which was obtained pursuant to Part 583 of this Title. This requirement applies to admissions and transfers.

(b) A residential treatment facility may only make admission determinations based on the written admission criteria maintained pursuant to section 584.7 of this Part. A residential treatment facility may request to waive one or more admission criteria for a particular child or youth by applying to the Office of Mental Health or commissioner's designee for an extension or exemption with cause. The office or commissioner's designee shall be authorized to halt admissions for a residential treatment facility for failure to comply with this section.

(c) In accordance with Mental Hygiene Law section 9.51, a residential treatment facility shall admit any appropriate child or youth with an authorization for access to residential treatment facility services to the next available bed if they meet the criteria for admission to the residential treatment facility, and have been designated as priority for admission by the Office of Mental Health or commissioner's designee. A residential treatment facility may request to waive this standard for a particular child or youth by applying to the Office of Mental Health or commissioner's designee for an extension or exemption with cause. If the residential treatment facility does not meet the standard, nor was it waived, the Office of Mental Health or commissioner's designee may halt admissions at its discretion.

(d) Upon application for admission or transfer of a child or youth, a residential treatment facility shall provide written notice as follows:

(1) All notices shall be made to the referral source, parent/legal guardian, Office of Mental Health or commissioner's designee, and the Local Governmental Unit of the child or youth's county of residence.

(2) The residential treatment facility shall give notice of receipt of an application for admission or transfer.

(3) The residential treatment facility shall evaluate and communicate the determination of the application for admission or transfer within a timeframe determined by the Office of Mental Health or commissioner's designee but no longer than 30 calendar days. A residential treatment facility may request to waive this standard for a particular child or youth by applying to the Office of Mental Health or commissioner's designee for a seven-day extension.

(i) The residential treatment facility shall give notice when a child or youth is determined to meet criteria for admission or transfer. This notice shall include the anticipated date of admission or transfer and any other information specified by Office of Mental Health or commissioner's designee.

(ii) The residential treatment facility shall give notice when a child or youth is determined to not meet admission criteria. This notice shall include the specific reason for such determination based on residential treatment facility's admission criteria maintained pursuant to section 584.7 of this Part.

(6) When a resident is ready for discharge or transfer, notice shall be provided 30 calendar days in advance of the anticipated date of discharge or transfer.

(7) When a resident attains the age of 21, notice shall be provided within 30 calendar days with the discharge plan that will achieve the child or youth's discharge from residential treatment facility services prior to the 22^nd birthday.

(e) Admissions, transfers and discharges shall be in accordance with the applicable requirements of articles 9 and 29 of the Mental Hygiene Law and Parts 15, 17 and 36 of this Title.

(f) Written admission, transfer, continued stay and discharge policies and procedures shall be maintained as required in section 584.7 of this Part and shall be subject to approval by the Office of Mental Health. Such policies and procedures shall:

(1) specify that admission, transfer, continued stay and discharge shall be based on the written criteria established pursuant to section 584.7 of this Part;

(2) delineate special requirements for admission, transfer, continued stay and discharge of children or youth in the custody of a social services official, the Office of Children and Family Services, or another person granted custody by the Family Court;

(3) prohibit discrimination solely on the basis of race, color, creed, national origin, sex or age gender identity, sexual orientation, military status, domestic violence victim status, disability, pregnancy-related condition, predisposing genetic characteristics, prior arrest or conviction record or familial status.

(4) provide for notification of the mental health information service of each admission in accordance with the requirements of Part 15 of this Title;

(5) require that the eligibility of each resident's continued stay in the residential treatment facility be regularly evaluated in accordance to standards and procedures established by the Office of Mental Health or commissioner's designee;

(6) be available to the staff, residents and their families, cooperating agencies and the general public; and

(7) require that discharge planning for each resident begin upon application for admission or transfer. Discharge planning shall be in accordance with section 29.15 of the Mental Hygiene Law and standards and procedures established by the Office of Mental Health or commissioner's designee; and shall include, at a minimum, identification of the discharge goals and the criteria for determining the specific resident's discharge readiness.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.9 Written plan for services and staff composition

(a) Each residential treatment facility shall develop and specify in a written plan for services and staff composition its goals and objectives and the manner in which it intends to achieve them. The written plan for services and staff composition shall be subject to approval by the Office of Mental Health.

(b) The written plan for services and staff composition shall address:

(1) the comprehensive treatment needs of the residents;

(2) the physical health needs of the residents;

(3) the vocational and educational needs of the residents; and

(4) the residential needs, including dietary, on a 24-hour basis.

(c) The written plan for services and staff composition shall encompass the following written plans and rationales required under this Part:

(1) services required to be available through the residential treatment facility;

(2) treatment program and environment addressing the day-to-day activities of the residents; and

(3) staffing required to provide services and day-to-day management and monitoring of the treatment program and environment.

(d) The written plan for services and staff composition shall address the manner in which the treatment team will integrate the services available through the residential treatment facility and the treatment program and environment into an individual treatment plan designed to meet the needs of each individual resident, and will involve the family or legal guardian.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.10 Staffing

(a) A residential treatment facility shall continuously employ an adequate number of staff and an appropriate mix of staff to carry out its goals and objectives as well as to ensure the continuous provision of sufficient regular and emergency supervision of all residents 24 hours a day. As a component of the written plan for services and staff composition, the residential treatment facility shall submit a staffing plan which includes the qualifications and duties of each staff position, by title. The residential treatment facility shall submit a written staffing rationale which justifies the staff to be utilized, the mix of staff and the plan for appropriate supervision of staff. The staffing plan shall include procedures for periodic supervisory conferences with staff and procedures for written performance evaluation consistent with any collective bargaining requirements. This staffing plan shall be based on the population to be served and the services to be provided. The staffing plan and its rationale shall be submitted for approval by the Office of Mental Health.

(b) All clinical staff shall have at least a high school diploma or its equivalent.

(d) For purposes of this Part, professional staff are individuals who are qualified by training and experience to provide direct treatment services under minimal supervision.

(1) Professional staff shall include the following as defined in section 584.4(c) of this Part:

(i) nurse;

(ii) occupational therapist;

(iii) physician;

(iv) psychiatrist;

(v) psychologist;

(vi) rehabilitation counselor;

(vii) social worker;

(viii) teacher;

(ix) therapeutic recreation specialist; and

(x) speech pathologist.

(2) Other professional disciplines may be included as professional staff, provided that the discipline is acceptable to the Office of Mental Health and is approved as part of the staffing plan by the Office of Mental Health. The discipline shall be from a field related to the treatment of mental illness. The individual shall be licensed in such discipline by the New York State Education Department, or have a master's degree in such discipline from a program approved by the New York State Education Department, and shall have specialized training or experience in treating persons with mental illness.

(e) In order to assure that the residential treatment facility employ an adequate number and mix of professional staff who meet the qualifications provided in section 584.4(c) of this Part, the staffing plan shall meet each of the following requirements. A single staff member may be counted against more than one requirement.

(1) At least two persons representing different professional staff categories as delineated in subdivision (f) of this section shall be employed on a full-time basis.

(2) Persons representing each of the following professional staff categories shall be employed at least one fifth of the hours of a full-time employee: nurse, psychiatrist, psychologist, social worker, and recreation therapist.

(3) One full-time equivalent professional staff member shall be employed for each seven residents.

(f) In order to assure that an adequate number of professional staff are qualified by training and experience to provide clinical supervision of other staff and to provide programmatic direction, at least 25 percent of the professional staff required to comply with paragraph (e)(3) of this section in each residential treatment facility shall meet the following qualifications:

(1) a nurse who has a bachelor's degree and at least three years post-licensure experience in treating mentally ill children or youth;

(2) a physician who has at least one year of post-medical degree experience in treating mentally ill children or youth;

(3) a psychiatrist who has at least one year of post-medical degree experience in treating mentally ill children or youth;

(4) a psychologist who has specialized training in school psychology, clinical psychology or counseling psychology and at least two years of post- -graduate experience in treating mentally ill children or youth;

(5) a rehabilitation counselor who has a master's degree in rehabilitation counseling from a program approved by the New York State Education Department, current certification by the Commission on Rehabilitation Counselor Certification and two years of post- graduate experience in treating mentally ill children or youth;

(6) a social worker who has specialized training in clinical practice and two years post-graduate experience in treating mentally ill children or youth ; and/or

(7) a therapeutic recreation specialist who has a master's degree in therapeutic recreation from a program approved by the New York State Education Department, current registration as a therapeutic recreation specialist by the National Therapeutic Recreation Society and two years of post- graduate experience in treating mentally ill children or youth.

(g) In order to assure that the residents are adequately supervised and are cared for in a safe and therapeutic manner, the staffing plan shall meet each of the following requirements:

(1) At least two clinical staff members shall be assigned to direct care responsibilities for each living unit during all hours the residents are awake and not in school.

(2) At least one clinical staff member shall be assigned to direct care responsibilities for each living unit for each five residents during all hours the residents are awake and not in school.

(3) At least one clinical staff member shall be assigned direct care responsibility, be awake, and be continuously available to the children or youth on each living unit during all hours the residents are asleep. A minimum of one additional clinical staff member for each 14 children or youth shall be immediately available onsite to assist with emergencies or problems which might arise.

(4) Appropriate professional staff shall be available to assist in emergencies on at least an on-call basis at all times.

(5) A physician shall be available on at least an on-call basis at all times.

(h) In order to assure the appropriate supervision of the nutritional aspects of dietetic services, a qualified dietitian shall be available on at least a consultation basis.

(1) The amount of time a qualified dietitian is available shall be sufficient to permit the dietitian to direct nutritional aspects of patient care, assure that dietetic instructions are carried out and assist in the evaluation of the dietetic service.

(2) When a qualified dietitian is only available on a consultation basis, regular written reports shall be submitted to the director regarding the implementation and evaluation of dietetic services.

(i) All staff shall have qualifications appropriate to assigned responsibilities as set forth in the staffing plan and shall practice within the scope of their professional discipline.

(1) All staff shall submit documentation of their training and experience to the provider of services. Such documentation shall be retained on file by the residential treatment facility.

(2) Psychological testing and evaluation procedures may only be provided by or under the supervision of a licensed psychologist.

(j) Students or trainees may qualify as clinical staff under the following conditions:

(1) The students and trainees are actively participating in a program leading to attainment of a recognized degree or certificate in a field related to mental health at an institution chartered or approved by the New York State Education Department. Limited permit physicians are considered students or trainees.

(2) The students or trainees are supervised and trained by professional staff meeting the qualifications specified in subdivision (f) of this section and limited permit physicians are trained by physicians.

(3) The students or trainees receive at least one hour of supervision for every five hours of treatment services provided. Limited permit physicians must work under the direct supervision of physicians.

(4) The students or trainees use titles that clearly indicate their status.

(5) Written policies and procedures pertaining to the integration of students and trainees within the overall operation of the residential treatment facility receive prior approval by the Office of Mental Health.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.11 Service requirements

(a) The services available through residential treatment facility must address the treatment needs of the resident and must include mental health services, educational and vocational services, physical health services and dietetic services.

(b) As a component of the written plan for services and staff composition, the residential treatment facility shall provide a written plan and rationale for the services available which shall be subject to approval by the Office of Mental Health. The written plan shall indicate what services will be available and whether the residential treatment facility will provide the services directly or through a written agreement with the provider of services. The written plan shall indicate what services will be available for involvement by the families or legal guardians of the residents.

(c) The mental health services available through the residential treatment facility shall include, but are not limited to, the services listed below. These mental health services must be provided directly by the residential treatment facility:

(1) case coordination services;

(2) verbal therapies;

(3) medication therapy;

(4) therapeutic recreation services;

(5) task and skill training.

(d) The physical health services available through the residential treatment facility shall include, but are not limited to, the services listed below. Physical health services may be provided directly by the residential treatment facility or may be provided by written agreement as provided for in subdivision (e) of this section.

(1) a physical examination upon admission, periodic assessment of physical condition, and treatment as needed;

(2) a dental examination within six months of admission, periodic assessment, and treatment as needed;

(3) an assessment of immunization upon admission, and an ongoing immunization program;

(4) health education and sex education; and

(5) emergency care on a 24-hour basis.

(e) When physical health services are not provided directly by the residential treatment facility, there shall be a written agreement between the provider of services and the residential treatment facility. When physical health services are provided by the same provider of services, written policies and procedures will be an acceptable alternative to a written agreement. The written agreement or written policies and procedures shall, at a minimum, address:

(1) referral of residents;

(2) qualifications of staff providing services;

(3) exchange of clinical information; and

(4) financial arrangements.

(f) Educational and vocational services available through the residential treatment facility shall include, but are not limited to, the minimum requirements of the State Education Law regarding regular education, vocational education and special education, as appropriate to meet the needs of the residents. Education services may be provided directly by the residential treatment facility or may be provided by written agreement as provided for in subdivision (g) of this section. In any case, education services approved by the Education Department must be available either on the same site or in close physical proximity to the residential treatment facility.

(g) When the education services are not provided directly by the residential treatment facility, there shall be a written agreement between the provider of services and the residential treatment facility. The provider of education services shall be a State Education Department-approved program. When education services are provided by the same provider of services, written policies and procedures will be an acceptable alternative to a written agreement. The written agreement or written policies and procedures shall, at a minimum, address:

(1) qualifications of staff providing services;

(2) participation of educational and vocational staff in the treatment planning process;

(3) access by staff of the residential treatment facility to educational and vocational programs and records; and

(4) financial arrangements.

(h) The dietetic services available through the residential treatment facility shall include, but are not limited to, the services listed below. Dietetic services may be provided directly by the residential treatment facility or may be provided by written agreement as provided for in subdivision (i) of this section.

(1) safe and sanitary storage and serving of foods;

(2) planned menus that provide for a nutritionally adequate diet for all residents; and

(3) provisions to meet special dietary needs.

(i) When dietetic services are not provided directly by the residential treatment facility, there shall be a written agreement between the provider of services and the residential treatment facility. When dietetic services are provided by the same provider of services, written policies and procedures will be an acceptable alternative to a written agreement. The written agreement or written policies and procedures shall, at a minimum, address:

(1) qualifications of staff providing services;

(2) planned menus that provide for a nutritionally adequate diet served in an appetizing manner to all residents;

(3) provisions to meet special dietary needs; and

(4) financial arrangements.

(j) The residential treatment facility must have a written agreement for the provision of emergency psychiatric services with a provider of inpatient psychiatric services operated or certified by the Office of Mental Health.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.12 Treatment program and environment

(a) The treatment program and environment shall be designed to provide appropriate care on a 24-hour basis and to enhance treatment for all residents. The treatment program and environment shall ensure:

(1) a planned and predictable day-to-day routine for all residents

(2) the provision of a balance of privileges, expectations and responsibilities as appropriate to the ages and levels of functioning of the residents; and

(3) the safety, comfort and well-being of all residents.

(b) As a component of the written plan for services and staff composition, the residential treatment facility shall provide a written plan and rationale for the treatment program and environment which shall be subject to approval by the Office of Mental Health, and addresses, at a minimum, the following:

(1) the manner in which the treatment program and environment will be implemented. Implementation must be consistent for all residents, yet must be sufficiently flexible to accommodate the needs of individual residents;

(2) the manner in which the treatment program and environment will be explained to the residents and their families or legal guardians upon admission;

(3) the day-to-day routines that the residents and staff will follow;

(4) the behavioral expectations for all residents, including identification of behaviors that are acceptable and unacceptable. This must address time both in the residential treatment facility and away from it;

(5) the means for providing instruction to residents, consistent with their age, needs and clinical condition as well as the needs and circumstances within the facility or program, in techniques and procedures which will enable such residents to protect themselves from abuse and maltreatment;

(6) the house rules and the response the resident can expect if they either comply or fail to comply with them. This can include staff response, limitations on privileges or other actions specified by the residential treatment facility;

(7) the mechanism for enabling residents, where appropriate, to participate in the decision making process within the residential treatment facility relating to the treatment program and environment;

(8) the means of observing holidays and personal milestones in keeping with the cultural and religious background of the residents;

(9) the procedure for communications and/or visitations with family, legal guardians, friends, and significant others; and

(10) the means of providing restitution or reimbursement for damages to property of the resident, other residents, and the residential treatment facility.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.13 Special treatment procedures

(a) There shall be a written plan for the use of restraint and seclusion, as defined in section 584.4 of this Part, that is in accordance with section 526.4 of this Title.

(b) There shall be a written plan for the use of time-out, as defined in section 584.4 of this Part. This plan shall, at a minimum, specify the criteria and procedures for the use of time-out, the rooms to be used, the procedures for monitoring that shall provide for visual observation of the child or youth at intervals of no more than 15 minutes, and the requirements for documentation in the case record. Time-out shall be limited to 30 minutes at one time, 45 minutes in any hour and two hours in any 24-hour period.

(c) No residential treatment facility shall use extraordinary risk procedures without prior approval by the Office of Mental Health of a written plan for the use of such procedures. The plan shall demonstrate compliance with all applicable Federal and State requirements. Extraordinary risk procedures include, but are not limited to, experimental treatment modalities, psychosurgery, aversive conditioning and electro-convulsive therapies.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.14 Treatment team

(a) Treatment shall be the responsibility of an interdisciplinary treatment team. A treatment team shall be responsible for developing and implementing a treatment plan for each resident as required by section 584.15 of this Part.

(b) In order to address all aspects of the resident's needs, a treatment team shall be established for each resident and shall be comprised of the resident, clinical staff who are involved in the treatment of the individual resident on a regular basis, and where appropriate, of the family or legal guardian.

(1) The treatment team shall include all staff having significant participation in the treatment of the resident. The team shall, at a minimum, include a psychiatrist, at least one member of the clinical staff who is assigned to the living unit on a daily basis, and at least one member of the professional staff responsible for providing each of the following services to the resident:

(i) verbal therapies;

(ii) therapeutic recreation services; and

(iii) education and vocational services.

(2) One member of the treatment team must be designated as case coordinator for the resident.

(c) The residential treatment facility must develop written policies and procedures for the operation of its treatment teams which shall be subject to approval by the Office of Mental Health. At a minimum, the policies and procedures must address the following:

(1) the composition of treatment teams;

(2) the criteria for changing treatment team members;

(3) the representation required for the development of initial and comprehensive treatment plans and for treatment plan reviews;

(4) the responsibilities of the case coordinator;

(5) the manner in which the treatment team will coordinate with the appropriate committee on special education; and

(6) the manner in which the treatment team will involve the family or legal guardian in the treatment process.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.15 Individual treatment plans

(a) An individual treatment plan shall be developed and implemented for each resident by the resident's treatment team.

(b) The individual treatment plan shall be based on a complete assessment of each resident.

(1) The assessment shall include, but shall not necessarily be limited to, physical, emotional, behavioral, social, educational, recreational and, when appropriate, vocational and nutritional needs. Special consideration shall be given to the role of the resident's family in each area of assessment.

(2) Clinical consideration of each resident's needs shall include a determination of the type and extent of special clinical examinations, tests and evaluations necessary for a complete assessment.

(3) The complete assessment shall be updated and documented at least annually as required in section 584.16 of this Part.

(1) The individual treatment plan shall identify all service needs of the resident, whether or not the services are provided directly by the residential treatment facility.

(2) The individual treatment plan shall address the manner in which the family or legal guardian will be involved in the treatment process.

(3) The individual treatment plan shall address the manner in which the resident and his/her family or legal guardian will participate in the overall treatment program and environment of the residential treatment facility as provided for in section 584.12 of this Part.

(4) For those children or youth that have been determined to be classified with an educational disability and in need of special educational services and programs, the individual treatment plan shall address the special educational needs identified in the individualized education program. However, the individualized education program shall be maintained as a separate and distinct record.

(d) The resident and, as appropriate, the resident's family shall participate in the development and implementation of the individual treatment plan.

(e) The individual treatment plan shall be developed and revised as follows:

(1) an initial treatment plan which complies with the requirements of section 584.16(e) of this Part shall be developed within 72 hours of the resident's admission or transfer;

(2) a comprehensive treatment plan which complies with the requirements of section 584.16(f) of this Part shall be developed within 14 days of the resident's admission or transfer; and

(3) the comprehensive treatment plan shall be reviewed and revised if necessary at least every 30 days.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.16 Case record

(a) There shall be a complete case record maintained at one location for each resident admitted to the residential treatment facility. For those children or youth that have been determined to be classified with an educational disability and in need of special educational services and programs, there may also be an individualized education program, but such individualized education program shall be separate and distinct from the case record.

(b) The case record shall be confidential and access shall be governed by the requirements of section 33.13 of the Mental Hygiene Law and 45 C.F.R. Parts 160 and 164 as incorporated by reference in Part 800 of this Title.

(c) The case record shall be available to all clinical staff involved in the care and treatment of the resident, consistent with the provisions of 45 C.F.R. Parts 160 and 164.

(d) Each case record shall include:

(1) identifying information about the resident served and the resident's family;

(2) a note upon admission, indicating source of referral, date of admission, rationale for admission, the date service commenced, presenting problem and immediate treatment needs of the resident;

(3) the application for admission to a residential treatment facility and any other information obtained from the Office of Mental Health or commissioner's designee's evaluation of eligibility for access to residential treatment facility services, including an assessment from the committee on special education, when available;

(4) assessments of psychiatric, medical, educational, emotional, social and recreational needs. Where appropriate, assessments of vocational and nutritional needs shall be included. Special consideration shall be given to the role of the resident's family in each area of assessment;

(5) reports of all mental and physical diagnostic examinations and assessments, including findings and conclusions;

(6) reports of all special studies performed, including, but not limited to, X-rays, clinical laboratory tests, psychological tests, or electroencephalograms;

(7) initial and comprehensive treatment plans;

(8) Progress notes which relate to the goals and objectives of the initial or comprehensive treatment plans, which shall be signed by the staff member who provided the service or by one participating staff member when several staff members have had significant interaction with the resident.

(i) Progress notes shall be written at least weekly and additionally whenever a significant event occurs that affects, or potentially affects, the resident's condition or course of treatment.

(ii) Progress notes shall be written regarding the educational program as determined in the resident's individualized education program.

(iii) Progress notes shall be written regarding involvement of the family or legal guardian in treatment as determined in the resident's treatment plan;

(9) summaries of treatment plan reviews and special consultations regarding all aspects of the resident's complete daily program;

(10) dated and signed orders which indicate commencement and termination dates for all medications;

(11) a discharge summary, prepared within 15 days of discharge or transfer, which includes a summary of the clinical treatment, or reasons for discharge or transfer and, if appropriate, the provision for alternative treatment services which the resident may require; and

(12) information as may be required for the effective implementation of the utilization review plan provided for in section 584.18 of this Part.

(e) initial treatment plan shall include:

(1) admission diagnosis or diagnostic impression;

(2) a brief description of the resident's and the resident's family problems, strengths, conditions, disabilities or needs;

(3) objectives relating to the resident's problems, conditions, disabilities and needs, and the treatments, therapies and staff actions which will be implemented to accomplish these objectives; and

(4) initial discharge goals and criteria for determining the specific resident's discharge readiness, the anticipated discharge date and any other requirements established in standards and procedures established by the Office of Mental Health or commissioner's designee.

(f) The comprehensive treatment plan shall include:

(1) diagnosis;

(2) a brief description of the resident's and the resident's family problems, strengths, conditions, disabilities, functional deficits or needs;

(3) a brief description of the treatment and treatment planning which demonstrates that the program is addressing the functional deficits of the resident which substantiated the resident's eligibility for admission to the residential treatment facility;

(4) goals to address the resident's problems, conditions, disabilities and needs which indicate the expected duration of the resident's need for services in the residential treatment facility;

(5) objectives relating to the resident's goals. Objectives must be written to reflect the expected progress of the resident. Projections for accomplishing these objectives should be specific;

(6) the specific treatments, therapies and staff actions which will be implemented to accomplish each of the objectives and goals. These must be stated clearly to enable all staff members participating in the treatment program to implement the goals and objectives;

(7) discharge goals and the criteria for determining the specific resident's discharge readiness, the anticipated discharge date and any other requirements established in standards and procedures established by the Office of Mental Health or commissioner's designee;

(8) the name of the clinical staff member, designated as case coordinator, exercising primary responsibility for the resident;

(9) identification of the staff members who will provide the specified services, experiences and therapies;

(10) documentation of participation by the patient in the development of the treatment plan whenever possible and by representatives of the resident's school district, parent or legal guardian and referring agent, where appropriate;

(11) date for the next scheduled review of the treatment plan; and

(12) a copy of the individualized education program as defined in accordance with requirements of the Commissioner of Education.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.17 Quality assurance

(a) Each residential treatment facility shall have an organized quality assurance program designed to enhance resident care through the ongoing objective assessment of important aspects of resident care and the correction of identified problems. The quality assurance program shall provide for the following:

(1) identification of problems or concerns related to the care of residents;

(2) objective assessment of the cause and scope of the problems or concerns, including the determination of priorities for both investigating and resolving problems. Priorities shall be related to the degree of adverse impact on the care provided to residents that can be expected if the problems remain unresolved;

(3) implementation of decisions or actions that are designed to eliminate, insofar as possible, identified problems; and

(4) monitoring to assess whether or not the desired result has been achieved and sustained.

(b) Each residential treatment facility shall prepare a written quality assurance plan designed to ensure that there is an ongoing quality assurance program that includes effective mechanisms for reviewing and evaluating resident care and provides for appropriate response to findings. This quality assurance plan shall be subject to approval by the Office of Mental Health. The written quality assurance plan shall address at a minimum:

(1) the individual or group with the overall responsibility to administer or coordinate the quality assurance program;

(2) the activities or mechanisms for reviewing and evaluating resident care;

(3) the individuals or organizational entities to whom responsibility will be delegated for specific activities or mechanisms;

(4) the activities or mechanisms for assuring the accountability of the clinical staff for the care they provide;

(5) the individuals or organizational entities to whom responsibility will be delegated for responding to findings or implementing corrective actions designed to eliminate insofar as possible identified problems; and

(6) the activities or mechanisms for monitoring whether or not the corrective actions have been implemented, and whether or not the desired result has been achieved and sustained.

(c) As a component of the quality assurance program, each residential treatment facility shall establish a written plan for reviewing untoward incidents in accordance with Part 524 of this Title.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.18 Utilization review

(a) Each residential treatment facility shall have an organized utilization review program designed to monitor the appropriateness of continued stay and to identify the overutilization or underutilization of services.

(b) Each residential treatment facility shall prepare a written utilization review plan designed to ensure that there will be an ongoing utilization review program. This utilization review plan shall be subject to approval by the Office of Mental Health. The written utilization review plan shall address at a minimum:

(1) the establishment of a utilization review committee that shall be composed of at least three members of the clinical staff who meet the qualifications provided in section 584.10(d) of this Part, at least two of whom shall be physicians. The utilization review committee shall include at least one physician who is knowledgeable in the diagnosis and treatment of mental illness;

(2) the operating procedures of the utilization review committee, including convening meetings as often as necessary to execute its functions, but in no event less often than quarterly; maintaining written minutes of meetings; and submitting reports to the director. Utilization review committee members who are directly involved in the care of a resident whose care is being reviewed shall be excluded from the committee's deliberations;

(3) the integration of the utilization review program into the quality assurance program provided for in section 584.17 of this Part.

(c) The utilization review committee shall review each resident's continued stay in accordance with the following requirements:

(1) An initial continued stay review shall be completed by the utilization review committee or commissioner's designee no later than 30 days after admission.

(2) Subsequent continued stay reviews shall be completed by the utilization review committee or commissioner's designee 90 days after the initial continued stay review and every 90 days thereafter.

(3) Review of each alternate care determination by the utilization review committee or a subcommittee of the utilization review committee which includes at least one physician.

(4) Notification of the physician on the resident's interdisciplinary treatment team of an alternative determination. Additional information provided by such physician shall be considered by the utilization review committee that includes at least two physicians.

(5) Notification of the director of final adverse decisions.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.20 Statistical records and reports

(a) Such statistical information shall be prepared and maintained as may be necessary for the effective operation of the facility and as may be required by the Office of Mental Health.

(b) Statistical information shall be reported to Office of Mental Health in a manner and within time limits specified by the Office of Mental Health.

(c) Statistical reporting shall be the responsibility of an individual whose name and title shall be made known to the Office of Mental Health.

(d) Summaries of statistical information shall be reviewed at least annually as part of the annual evaluation process.

(e) A residential treatment facility shall report to the Office of Mental Health or commissioner's designee and the Advisory Board on Residential Treatment Facility Admissions, as requested by the office, the disposition of applications for admission or transfer received by each residential treatment facility. Such report shall include, but not be limited to: the number of children or youth that applied for admission or transfer to the residential treatment facility, the number of children or youth deemed not appropriate for admission and the reason(s) why, the number of children or youth admitted to each residential treatment facility, the number of children or youth transferred from a hospital operated by the office of mental health and subsequently transferred to another hospital, the average length of stay for residents at the residential treatment facility, the number of children or youth served at each residential treatment facility, the number of involuntary placements and/or transfers from Office of Mental Health operated inpatient facilities, and any other information requested. The Advisory Board authority is limited to evaluating information relating to admission criteria and admission decisions and services provided by each residential treatment facility.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

N.Y. Comp. Codes R. & Regs. Tit. 14 § 584.21 Waiver provisions

In order to be eligible for the waiver provisions of this section, a residential treatment facility must meet one of the three following requirements:

(a) The residential treatment facility is located in a rural area and can demonstrate to the satisfaction of the Office of Mental Health the need for a waiver. For purposes of this Part, a rural area shall be a county where the population density is less than one hundred persons per square mile based upon current available data. The following sections of this Part are eligible for waiver:

(1) Section 584.5(d). The Office of Mental Health may approve a resident capacity of less than 14 where the residential treatment facility can demonstrate that this limitation would adversely affect the services provided. Consideration will be given to factors such as, but not limited to, geographic distance and transportation problems of residents' families and availability of staff.

(2) Section 584.10(e). The Office of Mental Health may approve the use of a physician in lieu of a psychiatrist where the residential treatment facility can demonstrate that a psychiatrist is unavailable to meet the requirement. The physician must have specialized training or experience in treating mentally ill children and youth.

(3) Section 584.10(e). The Office of Mental Health may approve the use of a person who has received a bachelor's degree in one of the following areas, art education, drama, early childhood education, music education, physical education, psychology, rehabilitation, sociology or special education in lieu of a therapeutic recreation specialist in circumstances where the residential treatment facility can demonstrate that a therapeutic recreation specialist is unavailable to meet the requirement. The person holding such a degree must also have specialized training or experience in treating mentally ill children and youth. This provision is extended to residential treatment facilities in other than rural areas.

(4) Section 584.11(f). Educational and vocational services may be provided at a location different than the residential treatment facility when the residential treatment facility can demonstrate that such arrangements would benefit the residents and that such services will be fully integrated through the treatment planning process.

(b) The residential treatment facility serves a specialized target population and can demonstrate to the satisfaction of the Office of Mental Health the needs for a waiver based upon the specialized needs of the target population. Section 584.5(d) of this Part is eligible for a waiver if the residential treatment facility can demonstrate that the need for such a program would not justify a program serving 14 or more residents.

(c) The residential treatment facility has a physical plant with living units designed for more than 14 residents and the residential treatment facility can demonstrate to the satisfaction of the Office of Mental Health the need for a waiver. Section 584.19(c) of this Part is eligible for a waiver if the residential treatment facility can demonstrate that such arrangements would be consistent with its goals and objectives and it would not be detrimental to the residents.

History

Amended New York State Register July 3, 2024/Volume XLVI, Issue 27, eff. 7/3/2024

Part 585 Standards For Family Care Homes

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.1 Background and intent

(a) family care homes provide 24-hour residential services in small family settings that match resident needs and provider skills offering an individually-tailored living environment.

(b) The Office of Mental Health issues an operating certificate to qualified individuals in the community who agree to provide specified residential services in their own homes to no more than six persons with mental illness. These family care providers are reimbursed for expenses occurred in providing care (i.e., room and board and mileage) and may receive additional funds to meet the personal needs of residents.

(c) Each family care provider must have a program sponsor, which is either a State-operated psychiatric center or a community-based mental health program. The program sponsor is responsible for ensuring that the family care provider is an integral part of the family care resident's treatment team. In addition, the program sponsor is responsible for training the provider, securing emergency support services, and monitoring the home for compliance with regulations, policies, and procedures of the Office of Mental Health.

(d) Family care providers are trained to manage a variety of placements, including:

(1) those who have reached their maximum level of independence and are in need of long-term care;

(2) those who require consistent care for extended periods of time to increase their level of functioning;

(3) those who are geriatric, physically disabled, or who are young adults in need of small group settings; and/or

(4) those who are young adults (18 years or older).

(e) These regulations repeal former Department of Mental Hygiene regulations at 14 NYCRR Part 87. Any references to such former Part, or sections thereof, shall be deemed to refer to, and to have been replaced by, this Part and corresponding sections thereof.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.2 Legal base

(b) Sections 31.03 and 31.04 of the Mental Hygiene Law authorize the Commissioner of Mental Health to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services, including family care homes, pursuant to an operating certificate, for persons diagnosed with mental illness.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.3 Definitions

For the purposes of this Part:

(a) Certified capacity means the maximum number of residents who can be placed in a family care home, as specified on the operating certificate of the home.

(b) Commissioner means the Commissioner of Mental Health.

(c) Family care home means a combination of a private residence and a family certified by the commissioner to provide 24-hour residential services in a small family setting.

(d) Family care program means a residential program comprised of family care homes certified by the Office of Mental Health, operated by a program sponsor.

(e) Family care provider means one or more adults (age 21 or older) approved by the commissioner to operate a certified family care home.

(f) Family care resident means an individual (age 18 or older) with a history of mental illness who has been placed in a family care home because he or she is in need of a supervised residential setting.

(g) Natural person means a human being, as distinguished from an artificial person created by law (e.g., a corporation).

(h) Office means the New York State Office of Mental Health.

(i) Operating certificate means a written document conveying to the public the authorization by the commissioner for a family care provider to operate a family care home.

(j) Private residence means a building or a part thereof with provisions for living, cooking, sanitary, and sleeping facilities arranged for the use of one family.

(k) Program sponsor means a State-operated psychiatric center or community-based provider of mental health services that operates a family care program, in which residential services are provided in family care homes by family care providers.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.4 Operating certificates

(a) Family care providers shall provide family care services only in accordance with an operating certificate that has been issued to such provider through its program sponsor by the office in accordance with Part 573 of this Title, and based on specific findings that:

(1) the family care provider is a person or persons, age 21 or older (without regard to marital status);

(2) the family care provider owns, rents, or leases the subject house or apartment;

(3) only one family care home will be operated by the family care provider, who will reside at the premises that will be the family care home;

(4) the family care home meets applicable building code standards, in accordance with this Part;

(5) the family care home is large enough to provide adequate and appropriate living accommodations for all of the people who reside in the household, including all residents that will be served by the family care home;

(6) the family care provider has agreed to fulfill all conditions and obligations identified in the family care provider application, as prescribed in section 585.4 of this Part;

(7) the commissioner has determined there is a public need for the home in the area to be served; and

(8) the program sponsor has ensured that family care providers and residents will have access to all necessary services, as demonstrated through written agreements with local service providers.

(b) Operating certificates issued to family care providers for family care homes shall be issued only to natural persons (individuals, not companies, agencies or corporations).

(c) Operating certificates will be issued for a period of up to two years to family care homes which comply with the requirements of this Part.

(d) No operating certificate issued under this Part shall be transferable. Operating certificates are issued to persons who have been approved as family care providers by the office and use by any other person is illegal.

(e) Each operating certificate issued under this Part shall identify its certified capacity, which shall indicate the maximum number of residents that can be placed in the home, regardless of placement source.

(1) All boarders and renters shall count against the established certified capacity; the family care provider must obtain prior written approval from the program sponsor before accepting a roomer or boarder.

(2) family care providers must notify the program's sponsor when there is a change in the number of persons living in the home who are not family care residents or boarders.

(3) No family care home shall be issued an operating certificate for a capacity of more than six residents.

(4) The certified capacity of a family care home shall not be exceeded at any time.

(f) The commissioner may suspend, revoke, or limit any operating certificate in accordance with Part 573 of this Title.

(g) Each family care provider shall submit an application for renewal of the operating certificate at least 60 days prior to the expiration of the current operating certificate.

(h) Each family care provider shall notify the office of any intention to voluntarily terminate the operation of any family care home at least 30 days prior to termination.

(i) Catastrophic termination of operation.

(1) The program sponsor and the office must be immediately notified of the occurrence of any catastrophe that impacts the family care home (such as, but not limited to fire, flood, earthquake or loss of lease).

(2) From the time of such catastrophe, the family care provider and its program sponsor shall be responsible for arranging for emergency accommodations and continuing support to all residents until such time as the family care home can be made habitable or alternate stable living accommodations can be found.

(3) If, due to the catastrophe, it appears that a family care home will be unable to operate as certified for a period of 60 days, the operating certificate will be deemed to be null and void.

(j) The current operating certificate will be kept in a safe place in the family care home.

(k) All operating certificates will remain the property of the office. Expired, invalidated, revoked, or terminated certificates shall be returned to the office.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.5 Application process

(a) Application for operating certificates must be submitted to the office by the program sponsor on a form and in a format designated by the office.

(b) A copy of the application will be sent to the appropriate local governmental unit serving the area for review.

(c) As part of the application process, program sponsors must be able to demonstrate, to the satisfaction of the office, that it has entered into written agreements with local service providers to ensure that family care providers and residents will have access to all necessary services.

(d) Qualifications of family care providers.

(1) A family care provider must be an adult person. The financial condition, good moral character and good physical and mental health of the applicant must be demonstrated to the satisfaction of the commissioner. Family care provider applicants are subject to the criminal history review process set forth in Part 550 of this Title.

(2) To avoid a conflict of interest, applications of program sponsor employees for operating certificates of family care providers will only be considered for approval if it is clearly established that such program sponsor employee:

(i) has not provided, and will not provide, therapeutic services to potential residents;

(ii) has not participated, and will not participate, in placement of residents;

(iii) is able to provide appropriate supervision for residents placed in the family care home.

(3) When more than one person living in a family care home will be designated as a family care provider, each person must separately meet all qualifications.

(4) Conditions and obligations. Family care providers must agree in their application to fulfill the following conditions and obligations:

(i) to promptly receive basic training in mental illness and/or medication management, as necessary and appropriate, before any residents are placed in the family care home;

(ii) to participate in all aspects of a background check, and to ensure persons living in family care homes (other than the resident) operated by the family care provider participate in all aspects of a background check, including a criminal history background check administered in accordance with Part 550 of this Title, as applicable;

(iii) to designate an appropriate adult willing to provide respite care in his/her home or to agree to utilize services available to the family care program until such person can be designated; and

(iv) to ensure that the family care homes which it operates will meet all requirements of this section and sections 585.6 and 585.7 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.6 Design and space requirements for family care homes

(a) Mobile homes or trailers shall not be permitted for use as family care homes.

(b) Each resident bedroom in a family care home shall contain an individual bed, bureau, closet and sufficient space for all furniture and resident passage therein.

(c) Each resident bedroom shall contain at least 70 square feet (exclusive of closets) for the first bed and at least 50 square feet (exclusive of closets) for each additional bed.

(d) No resident shall share a bedroom with more than one other person, except in homes certified prior to July 2006, in which case the room capacity shall not exceed four persons.

(e) Access and exit from any bedroom shall be to a hall or corridor, and not through a bathroom, toilet room or another bedroom.

(f) There shall be a minimum of one toilet, one lavatory and one tub or shower for each six persons living in the family care home.

(g) In addition to bedroom space, at least 30 square feet of space per person residing in the home shall be provided for living, dining and recreational activities. Dining space shall be furnished to provide for family group seating during meals.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.7 Safety standards for family care homes

(a) These standards provide a minimum level of safety for family care homes. Written waivers to requirements may be granted by the office when the commissioner has reasonable assurance that an equivalent compensatory alternative is utilized to maintain a minimal level of safety.

(b) Residents with physical or developmental disabilities. Requirements for residents who are non-ambulatory, deaf, blind or incapable of self preservation under emergency conditions shall be determined on an individual case basis.

(1) Family care homes that are one- or two-family dwellings shall comply with the current recognized edition of the Residential Code of New York State, the Property Maintenance Code of New York State, and the Fire Code of New York State.

(2) Family care homes that are residential occupancies, other than one- or two-family dwellings, shall comply with the current recognized edition of the Building Code of New York State, the Property Maintenance Code of New York State and the Fire Code of New York State.

(3) Family care homes that are located in New York City shall comply with the current recognized edition of the New York City Administrative Code for building code and housing maintenance code.

(4) Information on obtaining the codes is available from the New York State Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

(d) Additional requirements. All family care homes shall also comply with the following requirements:

(1) Smoke detection.

(i) Equipment requirements.

(a) Family care homes must utilize smoke-detecting, single-station alarm devices, which shall mean an assembly comprised of photoelectric or ionization type of smoke detector, control equipment and audible alarm in one unit, which upon detection of smoke, activates the alarm. Such devices must be designed and installed so as to avoid dead air space, detect smoke and activate the alarm, be reasonably free from false alarm and provide visible indication that the alarm is energized.

(b) The alarm must be clearly audible in adjacent sleeping spaces with intervening doors closed.

(d) If the device is a plug-in unit or directly wired there shall be no intervening wall switch.

(ii) Location requirements.

(a) One smoke-detecting alarm device shall be located in each bedroom.

(b) At least one single-station smoke-detecting alarm device shall be provided adjacent to sleeping spaces and shall be located on or near the ceiling.

(c) At least one additional device shall be provided some distance from the sleeping spaces and toward the living quarters but not in the kitchen nor near any corners. In a two-story home this device shall be close to the stairway leading to the second floor sleeping quarters.

(d) Any family care home with its own basement shall have a device located at the head of the basement stairs.

(e) The final locations of the devices shall be subject to office approval.

(iii) Maintenance requirements. Each device shall be tested at least once during each three month period, or per manufacturer's recommendations. Written documentation of such testing shall be maintained by the family care provider.

(2) Fire extinguishers. The family care provider shall facilitate and ensure the installation and maintenance of at least one class ABC, size 2A-10 B:C fire extinguisher in or near the kitchen area of each family care home that it operates. Additional fire extinguishers may be required by the commissioner when warranted by special conditions.

(3) Fire hazards. The use of portable unvented fuel-fired space heaters is prohibited in family care homes. The commissioner may approve the use of portable electric space heaters under certain conditions. The use of oil or kerosene fueled lighting or any other known fire hazard identified by the commissioner is prohibited in family care homes. Fixed fuel burning space heaters, fireplaces and wood burning stoves shall be properly installed and be cleaned and inspected annually prior to the start of the heating season by a trained technician. These heating devices cannot take the place of fixed heating systems required by New York State Building Code or New York City Building Code. Prior to the use of these devices, the homeowner must notify his/her insurance company of the use of these systems within the home.

(4) Fire safety plan.

(i) A fire evacuation plan must be developed and implemented to facilitate safe evacuation of the family care home in the event of a fire situation. The rehearsal of the plan should include all residents and all persons living in a family care home. This plan must be rehearsed at least quarterly and a written record kept. If necessary, the fire safety officer will be available to help devise and implement an evacuation plan.

(ii) The phone numbers of the local police and fire departments shall be posted near every telephone in the family care home.

(5) Carbon monoxide detectors.

(i) Carbon monoxide detectors shall be installed in all family care homes as per the Residential Code of New York State, the Fire Code of New York State, subdivision 5-a of section 378 of the New York Executive Law (Amanda's Law) and Local Law No. 7 for residences in New York City as applicable.

(ii) In accordance with applicable law, such detectors shall be battery operated, plug in type or hardwired.

(iii) Carbon monoxide detectors shall be installed in locations as required by applicable law and according to manufacturer's directions/specifications.

(iv) Such detectors shall be inspected and tested per the manufacturer's directions/specifications. Written documentation of such testing shall be maintained by the family care provider.

(6) Door sizes. Doors from residents' sleeping rooms shall be at least 28 inches wide and all hall and corridor doors shall be at least 30 inches wide. Required exterior exit doors shall be at least 36 inches wide.

(7) Environmental requirements.

(i) Functioning night lights equivalent to at least the illumination of a 11/2 watts incandescent light bulb shall be utilized in all hallways and bathrooms adjacent to sleeping areas.

(ii) No resident sleeping area will be permitted in an attic space or any area above the second floor which does not have two code-compliant exits, seven feet six inches ceilings for habitable space, windows and a completely finished interior.

(iii) All resident occupied rooms shall have operable windows with insect window screens.

(8) Housekeeping requirements.

(i) The family care provider must ensure that the dwelling unit and the grounds are clean, well maintained, and a safe living environment. The dwelling unit shall be kept free of hazardous physical conditions such as, but not limited to, warped or damaged floors, loose or worn floor coverings, cracked plaster, loose tiles, broken windows, damaged or worn stair treads, loose handrails, exposed wiring, etc. The dwelling shall be maintained free of dampness, odors and vermin.

(ii) The indiscriminate use of extension cords and over-loading of convenience outlets (wall plugs) is prohibited. Wiring with frayed or cracked insulation shall be replaced.

(iii) All dangerous household products, flammable liquids and chemicals shall be stored in a safe area.

(iv) The accumulation of highly combustible material in closets, attics, basements, garages or other parts of the dwelling unit is prohibited.

(v) Trash and garbage shall be kept in plastic or metal containers with properly fitted covers and disposed of on a regular basis.

(9) Prohibition of firearms in family care homes.

(i) Family care providers and all persons living in a family care home shall not bring or possess a firearm or ammunition on the grounds of a certified family care home unless a written exception has been granted by the program sponsor.

(ii) The program sponsor may make a determination to grant an exception to a family care provider or person living in a family care home:

(a) to possess a shotgun, rifle, or other ammunition for the purpose of hunting, target shooting, or gun collection;

(b) to possess a handgun in the circumstances where an individual is required to possess a handgun by virtue of his/her status as an active member of law enforcement or governmental agency; or

(iii) Requests for exceptions to the prohibition on possession of firearms must be made on forms and/or in a format prescribed by the office.

(iv) Police Officers in performance of their official duties are exempt from this firearm prohibition.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.8 Duties and responsibilities of family care providers

(a) General.

(1) The family care provider or providers, as identified on the operating certificate, shall live in and be responsible for the operation and management of the family care home.

(2) The family care provider shall participate with residents and program sponsors in planning treatment for each resident.

(3) The family care provider must provide a home-like, family living environment for residents and ensure that each resident is involved in family activities.

(b) Regulatory compliance. The family care provider shall assist the Office in carrying out its regulatory functions by:

(1) complying with the provisions of this Part, the Mental Hygiene Law, and all other applicable laws and regulations;

(2) making all reports as required by the commissioner with respect to family care home operations; and

(3) cooperating with the commissioner in any investigation or inspection of the family care home.

(1) ensuring residents have the right to a reasonable degree of privacy;

(2) ensuring that residents are given reasonable opportunity to have visitors and to visit outside the family care home;

(3) allowing residents to communicate freely and privately by letter or telephone without censorship;

(4) providing recreation and cultural activities for residents;

(5) providing a place that is suitable for private, confidential consultation or examination between the resident and visiting program sponsor/clinical program representatives;

(6) maintaining confidentiality of all health and personal information regarding residents, including his or her mental health history, financial information, residential service plan, and communications with treatment staff;

(7) assisting residents in developing greater independence and self confidence so they may move to other living arrangements when appropriate; and

(8) ensuring each resident's right to attend religious services of choice or not to participate in religious activities if he or she so chooses.

(d) Prohibited actions. The following actions are prohibited in family care homes:

(1) the use of restraint of any form (physical, mechanical, or drug used as a restraint) on a resident;

(2) locking a resident in his/her room, or otherwise preventing a resident from leaving his/her room or other confined area;

(3) physically, verbally, or emotionally abusing a resident;

(4) exploiting the resident in the performance of chores or work activities in the home against the resident's will; and

(5) exploitation or misuse of the resident's funds by any person living in the family care home.

(e) Health and medical care.

(1) The family care provider must participate with the program sponsor in arranging for routine and emergency medical and dental care, and must provide first aid care for residents in the home.

(2) Family care providers must assist residents in the administration of medication as directed by program sponsor personnel.

(3) The nutrition needs of residents must be met as follows:

(i) Family care providers must provide three well-balanced and nourishing meals, and appropriate snacks for each resident every day following dietary recommendations made by the program sponsor. When special diets are prescribed for residents, the family care provider shall provide and supervise these diets.

(ii) The family care provider shall ensure that persons residing in the home routinely eat meals together as a family unit.

(iii) The family care provider shall ensure that residents occasionally have the opportunity to eat meals elsewhere.

(f) Activities of daily living. The family care provider shall ensure the daily living activities of residents are met as follows:

(1) Family care providers shall assist residents, as necessary, in personal hygiene and the activities of daily living.

(2) Family care providers shall assist each resident, as necessary, in maintaining an adequate supply of clean clothing and toilet articles for daily use.

(g) Recreational and social needs. The family care provider shall ensure the recreational and social activities of the residents are met as follows:

(1) The family care provider shall ensure that the family care home has a supply of recreation and leisure time materials available.

(2) The family care provider shall arrange for, and encourage, residents to participate in periodic recreational and social activities in the community according to each resident's abilities.

(h) Supervision of residents. The family care provider shall participate with the program sponsor to determine and plan the amount and kind of supervision to be provided for each resident.

(i) Transportation. The family care provider shall cooperate with the program sponsor in arranging for the transportation of residents to programs, schools, religious, social, and recreational activities, medical and dental appointments and any other necessary appointments. Family care providers must have suitable arrangements for emergency transportation. When no other arrangements can be made, the family care provider will be responsible for all necessary transportation of residents.

(j) Insurance. The family care provider must maintain adequate automobile and household insurance protection.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.9 Placement, admission, and discharge of residents

(a) Placement.

(1) Placement referrals shall be made by the office or community mental health providers.

(2) It is the responsibility of program sponsor to screen the placement of prospective residents with family care providers in family care homes.

(3) Restrictions on placements.

(i) No individual against whom a warrant has been filed by a criminal court or district attorney in connection with a criminal proceeding may be placed with a family care provider in a family care home.

(ii) Persons committed to the custody of the Office of Mental Health pursuant to an order of a criminal court or a civil court pursuant to article 10 of the Mental Hygiene Law, cannot be placed with a family care provider in a family care home unless prior permission has been obtained from the court with jurisdiction over the case which authorizes such placement.

(4) A family care provider may accept a placement from an entity other than the office or community mental health provider, (such as a housing authority or social service agency) but only after such placement has received the prior approval of the program sponsor pursuant to a written agreement between the program sponsor and the director of the other placing entity. Such placements shall be counted as part of the certified capacity of the family care home.

(5) Each program sponsor shall use its best efforts to have a variety of placements in family care available to meet the needs of the residents.

(6) Whenever feasible and appropriate to the needs of the prospective resident, placements in family care should be transitional and time limited to ensure residents are moved to the least restrictive, most independent living arrangements that are possible, provided, however, that nothing in this section shall be deemed to prevent an extended or long term placement, if that is appropriate to the needs of a particular resident.

(7) Each prospective resident shall have a current medical examination prior to placement in a family care home For purposes of this paragraph, current shall mean no more than six months prior to placement.

(b) Admission.

(1) After a program sponsor has determined that an individual is in need of family care and has placed that individual in a family care home, the individual shall be admitted to the home by the family care provider. An individual shall be admitted to a family care home only upon his or her own willingness.

(2) To be appropriate for admission to a family care home, an individual shall:

(i) have a principal psychiatric disorder (not organic);

(ii) not be immediately dangerous to self or others;

(iii) not be in need of skilled nursing as indicated on a patient review instrument (PRI); and

(iv) be willing and able to self administer medication.

(3) Within 30 days of placement in a family care home, each resident shall have a residential service plan prepared by the program sponsor.

(i) The residential service plan shall be based on treatment plan recommendations and shall outline the residential service needs of the resident and identify family care provider and staff roles with respect to the resident. It shall include:

(a) long and short term goals based on the resident's needs and abilities;

(b) services and program that will be available to meet goals; and

(ii) The results of the medical examination conducted pursuant to paragraph (a)(7) of this section shall be used, as appropriate, to supplement the residential service plan.

(iii) The preparation of the residential service plan shall involve the resident (or, if the resident is not competent, someone acting on behalf of the resident), the family care provider, and other providers of services as appropriate.

(iv) The residential service plan shall be reviewed at least quarterly during the first year of placement and semi-annually thereafter.

(1) The family care provider shall participate in the formulation of a discharge plan for every resident. Discharge planning shall be part of residential service plan reviews and shall be incorporated within such plan as appropriate.

(2) Discharge criteria. Residents may be discharged from a family care home when at least one of the following criteria is met:

(i) the resident has medical, psychiatric or behavioral challenges which cannot be met by the family care home;

(ii) the resident has been hospitalized and will require a higher level of psychiatric care upon discharge from the hospital;

(iii) the resident voluntarily leaves the family care home; or

(iv) the resident shows sufficient improvement in functioning to be able to move to a more independent living situation.

(3) No overt or covert psychological or physical pressure shall be applied to prevent a resident who desires to leave a family care home from doing so.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.10 Removal of residents

(a) A resident who is not ready for discharge and who does not wish to leave a family care home voluntarily can be removed from a family care home when at least one of the following criteria is met:

(1) the resident poses a serious and continuous threat to the safety of him/herself or others in the family care home;

(2) the resident continuously fails or refuses to follow the rules of the family care home and program, and has been advised and reasonably reminded of such rules; or

(3) the medical needs of the residence can no longer be met by the family care home.

(b) A family care provider that wishes to remove a resident shall advise the program sponsor of the need to remove the resident from the home.

(1) If the resident poses a serious and continuous threat to the safety of him/herself or others in the family care home, nothing in this Section shall preclude the family care provider from immediately arranging for the removal of the resident to a location which has been determined to be an appropriate location for the resident given the resident's current status, needs, and conduct. Such location shall have the capacity to provide reasonable safety for the resident. If necessary, such removal shall be conducted by a mental health crisis team, where available, or a police officer who is a member of an authorized police department or force, or a sheriff's department.

(2) If the resident continuously fails or refuses to follow the rules of the family care home or program, the family care provider shall make a good faith effort to determine if the dispute can be resolved.

(c) If the family care provider decides that the resident must be removed from the family care home, such provider shall submit a written request to the program sponsor, setting forth the reasons for the request and describing any steps taken to resolve the matter and avoid the need for removal, where applicable. The program sponsor shall consult as needed with the local governmental unit or other appropriate entities in an effort to obtain assistance in procuring residential and service alternatives, and shall take appropriate action within 30 days of the date of receipt of the request.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.11 Respite

(a) Each family care home is entitled to a minimum number of respite days as provided in Mental Hygiene Law section 31.03(h)(7), or as provided in the annual State Budget.

(b) Program sponsors are responsible for approving all respite providers.

(1) All applicants for respite services must undergo a criminal history background check in accordance with the provisions of Part 550 of this Title.

(2) Paid respite providers cannot be a spouse of the family care provider, but may function in an unpaid respite capacity.

(3) Respite providers must be at least 21 years of age, provided, however, an exception may be made to certify a respite care provider of age 18 or older, if maturity, responsibility, and knowledge of caregiving can be adequately demonstrated.

(c) Respite providers must receive necessary basic training in order to maintain a normal routine and deliver required care in the family care home.

(d) Family care providers shall cooperate with program sponsors in planning and scheduling of respite for the family care provider, to ensure minimum disruption of the residents' activities during these periods in accordance with guidelines of the office.

(e) When emergency respite for the family care provider becomes necessary, the family care provider or other responsible person must immediately notify the program sponsor. In any emergency, the program sponsor will have the responsibility to maintain the safety and well-being of the residents with the cooperation of the family care provider.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.12 Recordkeeping

(a) The family care provider, with assistance and supervision from the program sponsor, will maintain a medication record. The medication record must include a complete accounting of all residents' medication stored and/or administered in the family care home.

(b) The family care provider shall maintain a complete and current set of family care policy guidelines as issued by the office.

(c) The family care provider shall maintain a complete and current file of all correspondence relating to the operating certificates of the family care home.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 585.13 Fees for family care

(a) Fees for the provision of room, board and services to clients may be established by the commissioner, with the concurrence of the Division of Budget.

(b) Fees shall be adjusted to reflect each client's ability to pay. Fees charged recipients of public assistance or supplemental security income benefits shall not exceed amounts available to such persons under law less the personal needs allowance required to be reserved for the use of such person pursuant to State law and regulations.

(c) Subject to the availability of resources to clients, the commissioner may increase fees for family care homes to meet extraordinary expenses generally incurred by providers of family care services. Such increases in fees may be individually calculated to reflect extraordinary expenses actually incurred by each family care home.

(d) Such fees shall be established administratively and a record thereof maintained by the commissioner.

(e) Upon approval of a fee or a temporary increase in fees, the family care provider shall give the client 30 days' written notice of the implementation of the adjusted fee.

Part 587 OPERATION OF OUTPATIENT PROGRAMS

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.1 Background and intent

(a) The purpose of outpatient programs for adults with a diagnosis of mental illness is the diagnosis and treatment of mental illness on an ambulatory basis. The goals of outpatient treatment for adults are to reduce symptoms, to maximize potential for recovery of meaningful social involvement to maintain the recipient's capacity to function in the community, or when appropriate, to improve parental functioning while maintaining or restoring minor children to the care of the parent where feasible.

(b) The purpose of outpatient programs serving children with a diagnosis of emotional disturbance is for the diagnosis and treatment of emotional disturbance on an ambulatory basis. The goals of outpatient treatment for children are to reduce symptoms and improve functioning while maintaining children in their natural environments, supporting family integrity and functioning, and providing ongoing support to the recipient and relevant collaterals.

(c) This Part establishes and sets certification standards for six categories of outpatient programs: clinic treatment programs for adults, clinic treatment programs for children, continuing day treatment, day treatment programs for children, intensive psychiatric rehabilitation treatment, and partial hospitalization.

(d) The Office of Mental Health issues operating certificates to programs which meet the standards set forth in this Part. Certification in and of itself does not confer eligibility to receive financial support from any governmental source. In order to qualify for reimbursement under the medical assistance program, outpatient programs must also comply with the standards specified in Part 588 of this Title.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.3 Applicability

(a) This Part applies to any provider of service which operates or proposes to operate a nonresidential outpatient program in which staff are assigned on a regular basis to provide services for the treatment of adults with a diagnosis of mental illness or children with a diagnosis of emotional disturbance.

(b) Section 587.4(a)(5)(iii) of this Part, in regard to organic brain syndromes, shall not be effective until July 1, 1996.

(c) This Part applies to any provider of service which provides carved-out services to enrollees in a Medicaid managed care program.

(d) This Part does not apply to the following activities which do not require an operating certificate issued by the Office of Mental Health:

(1) professional practice, on an individual or partnership basis, within the scope of professional licensure or certificate issued by an agency of the State;

(2) professional practice by a professional service corporation duly incorporated pursuant to the Business Corporation Law;

(3) pastoral counseling by a clergyman or minister as defined in section 2 of the Religious Corporation Law;

(4) nonresidential services that are provided in accordance with licensure or other supervision by a State agency other than the Office of Mental Health; or

(5) nonresidential services that are provided in accordance with purposes authorized in a charter or certificate of incorporation issued pursuant to the Education Law.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.5 Certification

(a) A provider of service intending to operate an outpatient program must obtain an initial operating certificate issued by the Office of Mental Health in accordance with procedures established in Part 551 of this Title. Renewals of such operating certificates shall be issued for terms of up to three years, unless the Office of Mental Health shall deem that a term less than three years is appropriate.

(b) Each outpatient program site shall be authorized by a separate operating certificate. The operating certificate shall specify for each site:

(1) the program type to be operated;

(2) the location of the program;

(3) the hours of operation of the program;

(4) the program capacity for continuing day treatment, partial hospitalization and intensive psychiatric rehabilitation treatment programs;

(5) the population to be served;

(6) the term of the operating certificate; and

(7) any approved optional services to be provided.

(c) Each outpatient program authorized by an operating certificate pursuant to this Part shall be clearly identifiable. Each outpatient program shall have separately identifiable staff, space and program policies and procedures.

(d) The county director of community services shall be responsible for identifying specific licensed clinic treatment programs to be designated by the commissioner as interim specialty clinic programs serving children in accordance with the identified need within the county. In making such identification, the county director of community services shall use the following criteria:

(1) All licensed satellites of a recommended provider in the same county shall be included if so designated by the commissioner. New York City is one county for such purposes.

(2) A county with less than one percent of children in New York State, as defined in accordance with section 587.4(a)(4) and (8) of this Part, may have up to two designated providers. If only one licensed clinic is included on the recommended list, the county director of community services may recommend a second licensed clinic without recent Medicaid experience serving children. The Office of Mental Health may approve these recommendations based upon competence of a licensed clinic treatment program to serve such children and upon accessibility to the clinic by such children. Accessibility shall be based upon a geographic area rather than a catchment area of the recommended licensed clinic treatment program.

(3) A county with at least one percent and less than three percent of the projected number of children in New York State, as defined in accordance with section 587.4(a)(4) and (8) of this Part, may recommend up to six licensed clinic treatment programs including all licensed satellites of such recommended providers.

(4) A county with at least three percent and less than eight percent of the children in New York State, as defined in accordance with section 587.4(a)(4) and (8) of this Part, may recommend up to 10 licensed clinic treatment programs.

(5) The City of New York may recommend up to 85 licensed clinic treatment programs.

(6) New York City may reallocate the total number of licensed clinics of the five boroughs which appear on the recommended list amongst the five boroughs. However, no more than the total number of licensed clinic treatment programs which appear on the list for the five boroughs shall be designated as interim specialty clinic treatment programs serving children.

(e) The commissioner shall designate a licensed clinic treatment program to provide interim specialty children's services to children as defined in accordance with section 587.4(a) of this Part. A clinic treatment program so designated shall be authorized to provide, and be reimbursed for providing, clinic treatment services to children notwithstanding the child's enrollment in a Medicaid managed care program. Such a clinic shall be designated as an interim specialty clinic treatment program serving children and shall operate in accordance with section 587.9 of this Part and Part 588 of this Title. An interim specialty clinic treatment program serving children shall be determined to meet at least one of the following criteria:

(1) In a county with less than three percent of the projected population of children in New York State, as defined in section 587.4(a) of this Part, the criteria for inclusion as a designated interim specialty clinic treatment program serving children includes:

(i) any licensed clinic treatment program, including all licensed satellite locations within the county, that had total Medicaid visits by children exceeding 400 visits annually for the most recent completed State fiscal year; or

(ii) any one licensed clinic treatment program location which had more than 200 Medicaid visits by children representing more than 75 percent of total Medicaid volume of visits at that location; or

(iii) all licensed clinic treatment programs in a county with two or fewer clinic treatment programs serving children; or

(iv) all county-operated clinic treatment programs serving children.

(2) In a county with three percent or more of the projected population of children in New York State, as defined in section 587.4(a)(4) and (8) of this Part, the criteria for inclusion as a designated interim specialty clinic treatment program serving children includes:

(i) any licensed clinic treatment program, including all licensed satellites within the county or the City of New York, which had total Medicaid visits by children exceeding 700 visits annually for the most recent completed State fiscal year; or

(ii) any one licensed clinic treatment program location which had more than 300 Medicaid visits by children representing more than 50 percent of total Medicaid volume of visits at that location; or

(iii) all licensed clinic treatment programs primarily serving physically handicapped or non-English speaking children; or

(iv) all county operated clinic treatment programs.

(3) In a county with one percent or more of the projected population of children in New York State, as defined in accordance with section 587.4(a)(4) and (8) of this Part, the commissioner shall not designate a clinic treatment program as an interim specialty clinic treatment program serving children which is not on the list recommended by the county director of community services, even if the list contains less than the maximum number of recommended clinic treatment programs as provided by the county director of community services with the exception of clinic treatment programs primarily serving special populations, including, but not limited to, physically handicapped or non-English speaking children. Such clinic treatment programs may be added to the list of recommended clinic treatment programs. Any additions made to the list of recommended licensed clinic treatment programs shall not increase the total number of programs to be designated as interim specialty clinic treatment programs serving children in a county.

(f) Outpatient programs may provide services at off-site locations. To the extent that such services are provided in a given location on a regularly and routinely scheduled basis (full or part time), such site shall be considered a satellite location and shall be in compliance with subdivision (g) of this section. In determining the regular and routine nature of services at a given site, the Office of Mental Health shall take into consideration the volume of services, the number of recipients receiving services, the number of staff assigned, the range of services provided, and whether the site will be utilized on a permanent or temporary basis.

(g) Off-site locations which are determined by the Office of Mental Health to be satellite locations of a primary program shall meet the following requirements:

(1) the satellite must be approved and certified by the Office of Mental Health in accordance with procedures established in Part 551 of this Title prior to operation;

(2) there shall be an explicit clinical and administrative linkage between the satellite and the primary program which includes, but is not limited to, methods of staff supervision, treatment planning, review of treatment plans, maintenance of recipients' records and utilization review;

(3) there shall be adequate and sufficient staff to provide services at the satellite. The full range of the primary program's services must be available as clinically appropriate to recipients who utilize the satellite location; and

(4) satellite locations must meet the physical plant requirements for program space set forth in section 587.19 of this Part.

(h) Establishment of a new program or changes to the operating certificate, other than changes in the hours of operation, require prior approval of the Office of Mental Health in accordance with Part 551 of this Title. Such changes include the following:

(1) changes in the physical space or location, use of additional sites, and change in capacity;

(2) termination of the program; or

(3) changes in the powers or purposes set forth in the certificate of incorporation of the provider of service.

(i) Changes in the hours of operation of a program may be made upon notification to the Office of Mental Health and the Office of Mental Health's determination that the changes will not negatively affect the program and will not increase the program's total Medical Assistance revenue.

(j) An operating certificate may be limited, suspended or revoked by the Office of Mental Health pursuant to Part 573 of this Title. The operating certificate is the property of the Office of Mental Health and as such shall be returned to the Office of Mental Health if it should be revoked.

(k) The commissioner may reduce the capacity of a program when it is determined that such program is not serving its certified capacity at a reasonable level.

(l) The provider of service shall frame and display the operating certificate within the outpatient program site in a conspicuous place which is readily accessible to the public.

(m) The provider of service shall cooperate with the Office of Mental Health during any review or inspection of the outpatient program.

(n) The commissioner shall have the authority to designate and approve demonstration projects for purposes of examining innovative program and administrative configurations; regulatory flexibility and alternative funding methodologies.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.6 Organization and administration

(1) to meet at least four times a year;

(2) to review, approve and maintain minutes of all official meetings;

(4) to review the program's compliance with the terms and conditions of its operating certificate, applicable laws and regulations;

(5) to ensure that the design and operation of the program is consistent with and appropriate to the ethnic and cultural background of the patient population;

(6) to ensure that recipients and their families have a mechanism for participating in treatment or psychiatric rehabilitation service planning decisions;

(7) to develop, approve, and periodically review and revise as appropriate all programmatic and administrative policies and procedures. Such policies and procedures shall include, but are not limited to, the following:

(i) written personnel policies which shall prohibit discrimination on the basis of race, color, creed, disability, sex, marital status, age, national origin or sexual orientation;

(ii) written policies which shall provide for verification of employment history, personal references, work record and qualifications, as well as securing a signed, sworn statement whether, to the best of his or her knowledge, the applicant has ever been convicted of a crime in this State or any other jurisdiction and for appropriate consideration and confidentiality of such information;

(iii) written volunteer policies which shall provide for screening of volunteers, verification of employment history, personal references and work history, and supervision of volunteers. Such policies shall also provide for securing a signed, sworn statement whether, to the best of his or her knowledge, the volunteer has ever been convicted of a crime in this State or any other jurisdiction, for appropriate consideration and confidentiality of such information;

(iv) written policies which are consistent with the obligations imposed by title VII of the Civil Rights Act, Federal Executive Order 11246, the Rehabilitation Act of 1973, section 504, the Vietnam Era Veteran's Readjustment Act, the Federal Age Discrimination in Employment Act of 1967, the Federal Equal Pay Act of 1963, and the American Disabilities Act of 1990;

(v) written policies and procedures concerning the prescription and administration of medication which shall be consistent with applicable Federal and State laws and regulations;

(vi) written policies and procedures governing recipients' records which ensure confidentiality consistent with the Mental Hygiene Law, and which provide for appropriate retention of such records pursuant to section 587.18 of this Part;

(vii) written criteria for admission, and discharge from the program;

(viii) written policies and procedures regarding the mandatory reporting of child abuse or neglect, reporting procedures and obligations of persons required to report, provisions for taking a child into protective custody, mandatory reporting of deaths, immunity from liability, penalties for failure to report, and obligations for the provision of services and procedures necessary to safeguard the life or health of the child. Such policies and procedures shall address the requirements for the identification and reporting of abuse or neglect regarding recipients who are children, or who are the parents or guardians of children; and

(ix) written policies and procedures describing a recipient grievance process which ensure the timely review and resolution of recipients' complaints and which provides a process enabling recipients to request review by the Office of Mental Health when resolution is not satisfactory; and

(8) to ensure the establishment and implementation of an ongoing training program for current and new employees and volunteers which address the policies and procedures regarding child abuse and neglect described in subparagraph (7)(viii) of this subdivision.

(d) A provider of service certified as a partial hospitalization program shall ensure that electroconvulsive therapy is only used pursuant to a written plan previously approved by the Office of Mental Health.

(e) The provider of service who provides carved-out services to enrollees of a managed care provider in need of such services shall enter into agreement(s) with managed care provider(s) in accordance with chapter 165 of the Laws of 1991 and the accompanying memorandum of agreement. Such agreements are intended to integrate special care and managed care within the Medicaid managed care program and the special care program based on the agreed upon protocols for the purposes of coordination of care and determination of need.

(f) A provider of service shall ensure that an outpatient program does not use seclusion as a treatment intervention or response to a crisis situation.

(g) A provider of service shall ensure that an outpatient program does not use restraint as a treatment intervention or in response to a crisis situation.

(h) A provider of service shall ensure that recipient participation in research only occurs in accordance with applicable Federal and State requirements.

(i) A provider of service shall ensure the timely reporting, investigation, review, monitoring and documentation of incidents pursuant to the Mental Hygiene Law and Part 524 of this Title.

(j) A provider of service shall ensure that no otherwise appropriate recipient is denied access to services solely on the basis of multiple diagnoses or a diagnosis of HIV infection, AIDS, or AIDS-related complex.

(k) There shall be an emergency evacuation plan and staff shall be knowledgeable about its procedures.

(l) There shall be a written utilization review procedure to ensure that all recipients are receiving appropriate services and are being served at an appropriate level of care. Such policies and procedures shall include provisions insuring that utilization review is performed only by professional staff trained to do such reviews, or by staff who are otherwise qualified by virtue of their civil service standing, and shall ensure to the maximum extent possible that the designated utilization review authority functions independently of the clinical staff which is treating the recipient under review.

(m) The provider of service shall participate as required with the local governmental unit in local planning processes pursuant to sections 41.05 and 41.16 of the Mental Hygiene Law. At a minimum, such participation shall include:

(1) provision of budgeting and planning data as requested by the local governmental unit;

(2) identification of the population being served by the program;

(3) identification of the geographic area being served by the program; and

(4) description of the program's relationship to other providers of service including, but not limited to, a description of all written agreements entered into pursuant to this Part.

(n) In programs which are not operated by State or local government, there shall be an annual audit, pursuant to a format prescribed by the Office of Mental Health, of the financial condition and accounts of the program performed by a certified public accountant who is not a member of the governing body or an employee of the program. Government-operated programs shall comply with applicable laws concerning financial accounts and auditing requirements.

(o) The provider of service shall establish mechanisms for the meaningful participation of recipient representatives either through direct participation on the governing body, or through the creation of a recipient advisory board. If a recipient advisory board is used, the provider of service shall ensure a mechanism for the recipient advisory board to make recommendations to the governing body.

(p) The provider of service shall establish mechanisms which ensure that the cultural and ethnic backgrounds of recipients are taken into account such as participation of ethnic consumers, ethnic representation on the staff and board, and inclusion of ethnic appropriate content in service programs.

(q) The provider of service shall establish mechanisms to ensure priority access by individuals, referred to the provider, who are enrolled in an assisted outpatient treatment program established pursuant to section 9.60 of the Mental Hygiene Law. The provider of service shall cooperate with the local governmental unit or the commissioner, or their authorized representatives, in ensuring priority access by such individuals, and in the development, review and implementation of treatment plans for such individuals. Prior to the discharge by a provider of service of an individual who is also enrolled in an assisted outpatient treatment program, the provider of service shall notify the individual's case manager and the director of the assisted outpatient treatment program. Any and all related information, reports and data which may be requested by the commissioner or the local governmental unit shall be furnished by the provider of service. Any requests for clinical records from persons or entities authorized pursuant to section 33.13 or 33.16 of the Mental Hygiene Law, regarding individuals who are the subject of, or under consideration for, a petition for an order authorizing assisted outpatient treatment shall be given priority attention and responded to without delay.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.7 Rights of recipients

(a) Recipients admitted to an outpatient program certified pursuant to this Part are entitled to the rights defined in this subdivision. A provider of service shall be responsible for ensuring the protection of these rights.

(1) Recipients have the right to an individualized plan of treatment services and to participate to the fullest extent consistent with the recipient's capacity in the establishment and revision of that plan.

(2) Recipients have the right to a full explanation of the services provided in accordance with their treatment or psychiatric rehabilitation service plan.

(3) Participation in treatment in an outpatient program is voluntary and recipients are presumed to have the capacity to consent to such treatment. The right to participate voluntarily in and to consent to treatment shall be limited only to the extent that:

(i) section 330.20 of the Criminal Procedure Law and Part 541 of this Title provide for court-ordered receipt of outpatient services;

(ii) article 81 of the Mental Hygiene Law provides for the surrogate consent of a court- appointed guardian for personal needs;

(iii) section 33.21 of the Mental Hygiene Law provides for the surrogate consent of a parent or guardian of a minor;

(iv) a recipient is enrolled in an assisted outpatient treatment program established pursuant to section 9.60 of the Mental Hygiene Law; or

(v) a recipient engages in conduct which poses a risk of physical harm to himself or others.

(4) While a recipient's full participation in treatment is a central goal, a recipient's objection to his or her treatment or psychiatric rehabilitation service plan, or disagreement with any portion thereof, shall not, in and of itself, result in his or her termination from the program unless such objection renders continued participation in the program clinically inappropriate or would endanger the safety of the recipient or others.

(5) The confidentiality of recipients' clinical records shall be maintained in accordance with section 33.13 of the Mental Hygiene Law.

(6) Recipients shall be assured access to their clinical records consistent with section 33.16 of the Mental Hygiene Law.

(7) Recipients have the right to receive clinically appropriate care and treatment that is suited to their needs and skillfully, safely and humanely administered with full respect for their dignity and personal integrity.

(8) Recipients have the right to receive services in such a manner as to assure nondiscrimination.

(9) Recipients have the right to be treated in a way which acknowledges and respects their cultural environment.

(10) Recipients have the right to a maximum amount of privacy consistent with the effective delivery of services.

(11) Recipients have the right to freedom from abuse and mistreatment by employees.

(12) Recipients have the right to be informed of the provider's recipient grievance policies and procedures, and to initiate any question, complaint or objection accordingly.

(b) A provider of service shall provide a notice of recipients' rights as described in subdivision (a) of this section to each recipient upon admission to an outpatient program. Such notice shall be provided in writing and posted in a conspicuous location easily accessible to the public. The notice shall include the address and telephone number of the Commission on Quality of Care and Advocacy for Persons with Disabilities, the nearest regional office of the Protection and Advocacy for Mentally Ill Individuals Program, the nearest chapter of the Alliance on Mental Illness of New York State and the Office of Mental Health.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.11 Day treatment programs serving children

(a) A day treatment program serving children shall provide treatment designed to stabilize children's adjustment to educational settings, to prepare children for return to educational settings, and to transition children to educational settings. Upon approval of the commissioner, a day treatment program may continue to serve individuals over the age of 18, but under the age of 22, who continue to meet the admission criteria for a day treatment program, in order to ensure that the individual has received the necessary educational services required to move to independent living.

(b) Eligibility for admission to a day treatment program serving children shall be based on a designated mental illness diagnosis, plus either an extended impairment in functioning due to emotional disturbance or a current impairment in functioning with severe symptoms, as defined in section 587.4(a)(4) and (8) of this Part.

(c) A day treatment program serving children shall provide assessment and health screening services to all recipients. Treatment planning and discharge planning services shall be provided in accordance with section 587.16 of this Part.

(d) A day treatment program serving children shall offer each of the following services, to be provided consistent with the recipients, conditions and needs:

(1) health referral;

(2) medication therapy;

(3) verbal therapy;

(4) crisis intervention services;

(5) case management;

(6) social training;

(7) task and skill training; and

(8) socialization.

(e) The following services may be provided by other providers of service or by programs operated by the provider of service: social training, task and skill training, and socialization. Additional services may be provided by other providers of service upon the review and approval by the Office of Mental Health.

(f) Any additional types of services provided by the day treatment program serving children which are clinically appropriate shall be considered optional services and shall be subject to prior review and written approval by the Office of Mental Health. Electroconvulsive therapy and aversive conditioning therapy shall not be allowed as optional services.

(g) The day treatment program serving children shall develop a plan for assuring continuity and integration of care within the mental health system and with other systems of care. Such plan shall be subject to approval by the Office of Mental Health.

(h) The day treatment program serving children shall develop a plan which will assure an appropriate response to persons enrolled in the program who need assistance when the program is not in operation. Such plan shall be subject to approval by the Office of Mental Health.

(i) Admission to a day treatment program serving children shall occur within the first three visits. A screening and admission note shall be written upon decision to admit which shall include the following:

(1) reason for referral;

(2) identification of collaterals interviewed;

(3) primary clinical and service-related needs and services to meet those needs; and

(4) admission diagnosis.

(j) When an admission is not indicated, notation shall be made of the following:

(1) the reason for no admission;

(2) the disposition of the recipient; and

(3) any referrals made as appropriate.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.14 Behavioral health organizations

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.15 Staffing

(a) A provider of service shall continuously employ an adequate number and appropriate mix of staff to carry out the objectives of the program and to assure the outcomes of the program. The staffing plan shall document the staff qualifications, including training, clinical experience with adults diagnosed with mental illness or children with a diagnosis of emotional disturbance, and supervisory experience in a clinical setting, the appropriateness of the mix of staff, the assignment of staff to the primary program site and any approved satellite locations, and the supervisory relationships among the staff. Such plan shall be subject to review and approval by the Office of Mental Health at the time of issuance or renewal of the program's operating certificate.

(b) The staff of an outpatient program shall include a sufficient mix of clinical and professional staff to provide all of the required services and to implement the treatment plans of the program's service recipients. In order to provide adequate clinical supervision and programmatic direction, a sufficient number of the professional staff must be qualified by training and clinical supervisory experience in the treatment of adults diagnosed with mental illness, or children with a diagnosis of emotional disturbance, as appropriate. Outpatient programs, except for intensive psychiatric rehabilitation treatment programs, shall, at a minimum, have a psychiatrist on staff for one-fifth of the operating hours of the program or for one-fifth of the hours of a full-time employee, whichever is less.

(c) A minimum percentage of the total clinical staff hours of the outpatient program shall be provided by professional staff, of which a minimum percentage must be employed full time.

(1) At least 70 percent of the total clinical staff hours of a clinic treatment program shall be provided by professional staff. At least 20 percent of the total full-time equivalent professional staff shall be employed full time.

(2) At least 40 percent of the total clinical staff hours of a continuing day treatment program shall be provided by professional staff. At least 20 percent of the total full-time equivalent professional staff shall be employed full time.

(3) At least 50 percent of the total clinical staff hours of a day treatment program serving children shall be provided by professional staff. At least 20 percent of the total full-time equivalent professional staff shall be employed full time.

(4) At least 70 percent of the total clinical staff hours of a partial hospitalization program shall be provided by professional staff. At least 30 percent of the total full-time equivalent professional staff shall be employed full time.

(5) At least 50 percent of the total clinical staff hours of an intensive psychiatric rehabilitation treatment program shall be provided by professional staff. At least 40 percent of the total professional staff shall be employed full time.

(d) Continuing day treatment programs, day treatment programs serving children, partial hospitalization programs, and intensive psychiatric rehabilitation treatment programs shall maintain an adequate and appropriate number of clinical staff members on site in proportion to the number of recipients on site. Providers shall be deemed to have met such standards if their staffing ratios are at least in accordance with the following:

(1) continuing day treatment programs: one clinical staff member on site for every 10 recipients on site;

(2) day treatment programs serving children: one clinical staff member on site for every eight recipients on site;

(3) partial hospitalization programs: one clinical staff member on site for every five recipients on site; and

(4) intensive psychiatric rehabilitation treatment programs: one full-time equivalent clinical staff member available for every eight recipients on site and/or off site during hours when the program is in operation.

(e) A day treatment program serving children may include special education teachers as professional staff when such teachers are essential to accomplishing the goals and objectives of the day treatment program and are justified as part of the staffing plan. A special education teacher is an individual who is currently certified as a teacher of special education by the New York State Education Department.

(f) A partial hospitalization program shall have a full-time equivalent professional staff member on call for crisis intervention services 24 hours per day, seven days per week.

(g) Staff may be shared among programs and shall be reflected in the staffing plan with discrete work assignments and hours noted for shared staff. Staff sharing is subject to approval by the Office of Mental Health at the time of issuance or renewal of the program's operating certificate. Such approval shall take into consideration factors such as, but not limited to, the number of recipients being served, staff recruitment and availability, and availability of and access to other programs in the area.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.16 Treatment planning for clinic treatment programs, continuing day treatment programs, day treatment programs serving children and partial hospitalization programs

(a) Treatment planning shall be an ongoing assessment process carried out by the professional staff in cooperation with the recipient and his or her family and/or other collaterals, as appropriate, which results in a treatment plan. The treatment plan shall be updated or revised as necessary to document changes in the recipient's condition or needs and the services and treatment provided.

(b) Treatment planning shall be based on an assessment of the recipient's psychiatric, physical, social, and/or psychiatric rehabilitation needs which result in the identification of the following:

(1) the recipient's designated mental illness diagnosis;

(2) the recipient's problems and strengths;

(3) the recipient's treatment goals consistent with the purpose and intent of the program; and

(4) the specific objectives and services necessary to accomplish goals.

(c) Recipient participation in treatment planning by an adult and approval of the plan shall be documented by the recipient's signature. Reasons for nonparticipation and/or approval by the recipient shall be documented in the case record.

(d) A treatment plan for a child shall be developed by professional staff of the program with participation of the recipient, as appropriate. A description of such participation shall be documented. The recipient's family and/or collaterals shall participate as appropriate in the development of the treatment plan. Collaterals participating in the development of the treatment plan shall be specifically identified in the plan.

(e) The treatment plan shall include, but need not be limited to, the following:

(1) the signature of the physician involved in the treatment;

(2) the recipient's designated mental illness diagnosis;

(3) the recipient's treatment goals, objectives and related services;

(4) plan for the provision of additional services to support the recipient outside of the program; and

(5) criteria for discharge planning.

(f) Progress notes shall be recorded by the clinical staff member(s) who provided services to the recipient. Such notes shall identify the particular services provided and the changes in goals, objectives and services, as appropriate. Progress notes shall be recorded within the following intervals:

(1) clinic treatment programs-each visit and/or contact;

(2) continuing day treatment programs-at least every two weeks;

(3) partial hospitalization programs-each visit and/or contact; and

(4) day treatment programs-at least every week.

(g) A periodic review of the treatment plan shall include the following:

(1) input of all staff involved in treatment of the recipient;

(2) the recipient, his or her family and/or other collaterals, as appropriate;

(3) assessment of the progress of the recipient in regard to the mutually agreed upon goals in the treatment plan;

(4) adjustment of goals, time periods for achievement, intervention strategies or initiation of discharge planning, as appropriate; and

(5) the signature of the physician involved in the treatment.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.17 Psychiatric rehabilitation service planning for an intensive psychiatric rehabilitation treatment program

(a) Psychiatric rehabilitation services in an intensive psychiatric rehabilitation treatment program shall be provided in accordance with an approved initial psychiatric rehabilitation service plan.

(b) The development of a psychiatric rehabilitation service plan shall be an ongoing process developed in accordance with section 587.4(c)(15) of this Part. Such plan shall be developed by the clinical staff, recipient, and any collaterals identified by the recipient for participation in planning, as appropriate. The psychiatric rehabilitation service plan shall be a mutually agreed upon course of action which identifies the following:

(1) statement of rehabilitation aspirations;

(2) statement of service goals and objectives;

(3) identification of planned interventions; and

(4) proposed time periods.

(1) input of all staff involved in the treatment of the recipient;

(2) the input of recipient, his or her family and/or other collaterals, as appropriate;

(3) assessment of the progress of the recipient in regard to mutually agreed upon goals in the psychiatric rehabilitation service plan; and

(4) adjustment of goals, time periods for achievement, intervention strategies or initiation of discharge planning, as appropriate.

(d) In such cases where the review indicates that mutually agreed upon goals have not been met, the staff who are working directly with the recipient, the recipient, and parties who were involved in the initial psychiatric rehabilitation service planning, shall adjust goals and time periods for achievement of such goals, adjust intervention strategies or initiate discharge or referral.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.18 Case records

(a) There shall be a complete case record maintained for each person admitted into an outpatient program. Such case record shall be maintained in accordance with recognized and acceptable principles of recordkeeping as follows:

(1) case record entries shall be made in nonerasable ink or typewriter;

(2) case records shall be legible;

(3) case records shall be periodically reviewed for quality and completeness; and

(4) all entries in case records shall be dated and signed by appropriate staff.

(b) The case record shall be available to all staff of the outpatient program who are participating in the treatment of the recipient and shall include the following information:

(1) recipient identifying information and history;

(2) preadmission screening notes, as appropriate;

(3) diagnosis;

(4) assessment of the recipient's psychiatric, physical, social, and/or psychiatric rehabilitation needs;

(5) reports of all mental and physical diagnostic exams, assessments, tests, and consultations;

(6) the treatment plan or psychiatric rehabilitation service plan;

(7) record and date of all on-site and off-site face to face contacts with the recipient, the type of service provided and the duration of contact;

(8) dated progress notes which relate to goals and objectives of treatment;

(9) dated progress notes which relate to significant events and/or untoward incidents;

(10) periodic treatment plan reviews;

(11) dated and signed records of all medications prescribed;

(12) discharge summary;

(13) referrals to other programs and services;

(14) consent forms;

(15) record of contacts with collaterals; and

(16) discharge plan.

(c) The discharge summary shall be transmitted to the receiving program prior to the arrival of the recipient, or within two weeks, whichever comes first. When circumstances interfere with a timely transmittal of the discharge summary, notation shall be made in the record of the reason for delay. In such circumstances a copy of all clinical documentation shall be forwarded to the receiving program, as appropriate, prior to the arrival of the recipient.

(d) When a recipient is transferred between programs offered by the same provider, a consolidated record format which follows the recipient may be used.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.19 Premises

(a) The provider of service shall maintain premises which are adequate and appropriate for the safe and effective operation of an outpatient program in accordance with the following:

(1) Program capacity of a continuing day treatment program, intensive psychiatric rehabilitation treatment program, and partial hospitalization program shall be determined by allocating adequate space for the number of persons served by the program.

(2) Occupancy of a continuing day treatment program, intensive psychiatric rehabilitation treatment program and partial hospitalization program shall not exceed the program capacity stated in the program's operating certificate by more than 15 percent.

(3) All outpatient programs shall provide for sufficient private rooms consistent with the capacity and purpose of the program.

(4) All outpatient programs shall provide for sufficient types and arrangements of spaces to provide group activities consistent with the capacity and purpose of the program.

(5) A continuing day treatment program space may be considered as part of sheltered workshop space only if a discrete portion of that space is identified as part of a continuing day treatment program and used exclusively for such purpose.

(6) All outpatient programs shall provide for controlled access to and maintenance of medication and supplies in accordance with all applicable Federal and State laws and regulations.

(7) All outpatient programs shall provide for controlled access to and maintenance of records.

(8) All outpatient programs shall provide for appropriate furnishings and equipment consistent with the purpose of the program.

(b) The provider of service shall ensure life safety on the premises by possession of a certificate of occupancy in accordance with the Building Code of New York State and the Property Maintenance Code of New York State (19 NYCRR Chapter XXXIII, Subchapter A, Parts 1221 and 1226) or comparable local codes.

(c) The provider of service shall consider the use of appropriate features and equipment which enable the accessibility of persons with physical disabilities, consistent with the population being served by the program.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.20 Waivers

(a) Psychiatric coverage may be waived under the following circumstances:

(1) The Office of Mental Health may approve the use of a physician in lieu of a psychiatrist in circumstances where the outpatient program can demonstrate that a psychiatrist is unavailable to meet the requirement. Such physician shall have specialized training or experience in the treatment of mental illness.

(2) If the requirements of paragraph (1) of this subdivision cannot be met, the Office of Mental Health may approve a plan for the provision of an equivalent level of care which shall include, but not be limited to, a physician who does not have specialized training or experience in the treatment of the mentally ill and at least a licensed psychologist or a registered nurse or a licensed social worker who is experienced in the treatment of adults with a diagnosis of mental illness and/or children with a diagnosis of emotional disturbance.

(b) The minimum percentage of the total full-time equivalent professional staff members required to be employed full time may be reduced with the prior written approval of the Office of Mental Health if the outpatient program can demonstrate that such reduction will not diminish the effectiveness of the services provided.

(c) Referral source requirements for partial hospitalization programs, as provided in section 587.13(b) of this Part, may be waived with the prior written approval of the Office of Mental Health.

(d) Providers shall apply for waivers in such form as the commissioner shall require. Waivers shall run concurrently with the term of the program's operating certificate. The Office of Mental Health may renew such waivers based upon a determination that conditions continue to warrant the granting of such waivers.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.21 Transition from Part 585 to Part 587

(a) Programs certified pursuant to Part 585 of this Title may continue to operate pursuant to the requirements of Part 585 of this Title until the expiration of the term of their operating certificate.

(b) Upon the expiration of an operating certificate issued pursuant to Part 585 of this Title, a provider may:

(1) apply for a single renewal of such certificate for up to two years pursuant to Part 573 of this Title;

(2) return its operating certificate to the Office of Mental Health; or

(3) apply for an operating certificate as a program established under this Part. Such application may also be made prior to the expiration of an existing operating certificate, at any time after the effective date of this Part.

(c) Programs operating pursuant to the requirements of Part 585 of this Title shall be reimbursed pursuant to the rates established in Part 579 of this Title.

(d) Programs operating pursuant to the requirements of this Part shall be reimbursed pursuant to the rates and utilization review requirements established in Part 588 of this Title.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 587.22 Enforcement standards and procedures

(a) A provider of service shall exercise due diligence in complying with the requirements of this Part. Due diligence means the exercise of reasonable and appropriate efforts to ensure compliance with the standards set forth in this Part.

(b) The Office of Mental Health shall review the program and practices of the provider of service in order to facilitate determinations as to whether providers are exercising the requisite due diligence and are otherwise in compliance with this Part.

(c) If, based on a review of the program and practice of a provider of service, the Office of Mental Health determines that a provider of service is not exercising due diligence in complying with the requirements of this Part, the Office of Mental Health shall give notice of the deficiency to the provider of service and may also initiate the following:

(1) request that the provider of service prepare a plan of correction, which plan shall be subject to approval by the Office of Mental Health; and

(2) provide such technical assistance as the Office of Mental Health deems necessary to assist the provider of service in developing and implementing an appropriate plan of correction.

(d) If the provider of service fails to prepare an acceptable plan of correction within a reasonable time or refuses to permit the Office of Mental Health to provide technical assistance or fails to promptly or effectively implement a plan of correction which has been approved by the Office of Mental Health, it shall be determined that the provider of service is in violation of this Part.

(e) Upon a determination that a provider of service is in violation of this Part or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate or impose fines in accordance with Mental Hygiene Law, section 31.16 and Parts 573 and 503 of this Title.

(f) Nothing in this section shall limit or preclude the commissioner from taking whatever immediate measures may be necessary, including the exercise of his authority under Mental Hygiene Law, sections 31.16(b) and 31.28, in the event that a patient's health or safety is in imminent danger or there exists any condition or practice which poses imminent danger to the health or safety of any recipient or the public.

History

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

Part 588 Medical Assistance Payment For Outpatient Programs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.1 Background and intent

(a) This Part establishes standards for reimbursement under the medical assistance program of outpatient programs for adults with a diagnosis of mental illness and children with a diagnosis of emotional disturbance certified by the Office of Mental Health.

(b) Title XIX of the Federal Social Security Act, as identified in section 502.2(c) of such Title, authorizes Federal grants to states to fund medical assistance to needy persons in accordance with a State plan approved by the Federal Department of Health and Human Services.

(c) The medical assistance program in New York State is administered by the Department of Health by and through local social service districts in cooperation with various State agencies, including the Office of Mental Health, or by the Department of Health by and through various State agencies, including the Office of Mental Health.

(d) The purpose of these regulations is to specify the fees or rates of reimbursement and any additional eligibility criteria or limits which will apply to Medicaid-enrolled recipients in outpatient programs.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.2 Legal base

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law give the commissioner the power and responsibility to plan, establish, license and evaluate programs and services for the benefit of individuals diagnosed with mental illness, and to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(c) Section 43.01 of the Mental Hygiene Law gives the commissioner authority to set rates for outpatient services at facilities operated by the Office of Mental Health. Section 43.02 of the Mental Hygiene Law provides that payments under the medical assistance program for outpatient services at facilities licensed by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Budget.

(d) Section 43.02 (b) of the Mental Hygiene Law gives the commissioner authority to request from operators of facilities licensed by the Office of Mental Health such financial, statistical and program information as the commissioner may determine to be necessary.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.3 Applicability

(a) This Part applies to any provider of service which is licensed to operate an outpatient program for adults with a diagnosis of mental illness and children with a diagnosis of emotional disturbance, in accordance with Part 587 of this Title.

(b) This Part applies to any part of a general hospital as defined in article 28 of the Public Health Law which is licensed to operate an outpatient program for adults with a diagnosis of mental illness and children with a diagnosis of emotional disturbance, in accordance with Part 587 of this Title.

(c) This Part applies to a State-operated psychiatric center which is licensed to operate an outpatient program for adults with a diagnosis of mental illness and children with a diagnosis of emotional disturbance, in accordance with Part 587 of this Title provided, however, that this Part does not apply to designated partial capitation programs (e.g., pre-paid mental health programs).

(d) This Part and all other standards of reimbursement applicable to outpatient programs shall be effective contingent upon Federal financial participation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.4 Definitions pertaining to this part

(a) Visit means a face-to-face interaction between a recipient or collateral and clinical staff for the provision of service. A visit shall involve one or more required or additional services or any optional services approved by the Office of Mental Health.

(b) All definitions specified in Part 587 of this Title apply in this Part.

(d) Home visit means an off-site visit by a clinician to a recipient in the recipient's current primary residence, other than a site which meets the definition of a satellite program as provided in Part 587 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.5 Standards applicable to all outpatient programs

(a) The program shall have a valid operating certificate issued by the Office of Mental Health.

(b) Reimbursement shall be made only for services provided to recipients who meet the eligibility criteria of an outpatient program as specified in Part 587 of this Title. In order to be eligible for reimbursement, all claims for reimbursement from the medical assistance program for persons admitted to an outpatient program shall include the designated mental illness diagnosis.

(c) Reimbursement shall only be made for services identified and provided in accordance with an individual treatment plan or psychiatric rehabilitation service plan as defined in section 587.4(c) of this Title.

(d) Reimbursement shall be made for one outpatient visit and one collateral visit per recipient per day irrespective of the number of collaterals involved in the visit.

(e) Upon admission to a specific outpatient program, reimbursement shall be made for participation in that program only, except as provided in paragraphs (1) through (4) of this subdivision. In no event shall a recipient be concurrently admitted to a clinic treatment program, a continuing day treatment program and an intensive psychiatric rehabilitation treatment program.

(1) Reimbursement shall be made for three concurrent visits when a recipient is in transition from one outpatient program to another outpatient program. Recipients in transition shall be considered in preadmission status in the new program in accordance with subdivision (k) of this section.

(2) Reimbursement shall be made for no more than five clinic visits per month for a recipient concurrently admitted to an intensive psychiatric rehabilitation treatment program and a clinic treatment program.

(3) Reimbursement shall be made for recipients currently admitted to a continuing day treatment program in accordance with this Part or a day treatment program in accordance with Part 585 or Part 587 of this Title when such recipient shall also be admitted to a clinic treatment program solely for the purpose of clozapine medication therapy. Reimbursement shall be made for no more than five clinic visits per month per recipient.

(4) Reimbursement shall be made for no more than five continuing day treatment program visits per month for a recipient concurrently admitted to an intensive psychiatric rehabilitation treatment program and a continuing day treatment program.

(f) Reimbursement for crisis intervention services or emergency mental health services to a recipient pursuant to either Part 587 or 590 of this Title is not subject to the limitations of subdivisions (d) and (e) of this section.

(g) Nothing in this Part shall be interpreted to limit recipient access to, or eligibility for services provided by an intensive case management program as defined in Part 506 of this Title. Reimbursement for case management services in an outpatient program shall be in accordance with the limitations in Part 506 of this Title.

(h) Service hours shall be determined by rounding to the nearest full hour once the minimum billable period has occurred, except for preadmission visits and crisis visits to a partial hospitalization program which shall be a minimum of one hour, and all continuing day treatment visits, for which no rounding shall be permitted.

(i) Reimbursement for outpatient services provided to recipients who are in a residential health care facility shall be made to the provider of the mental health services by the residential health care facility.

(j) Educational services or recipient education programs are not reimbursable, except that such services may be utilized to meet the duration of visit requirements specified in section 588.8(a) of this Part.

(k) Reimbursement for preadmission visits shall be as follows:

(1) a minimum of 30 minutes for a clinic treatment program;

(2) a minimum of one hour for a continuing day treatment program, partial hospitalization program and intensive psychiatric rehabilitation treatment program;

(3) a minimum of three hours for a day treatment program serving children; and

(4) limited to a maximum of three visits which shall occur over a period of time not to exceed the remaining days of the month in which the first preadmission visit occurred plus one full calendar month.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.6 Standards pertaining to reimbursement for clinic treatment programs

(a) Clinic treatment programs shall receive reimbursement for the following types of visits:

(1) Brief visit: shall be reimbursed for services of at least 15 minutes in duration but not more than 29 minutes of face-to-face interaction between one recipient and one therapist.

(2) Regular visit: shall be reimbursed for services of at least 30 minutes in duration of face-to-face interaction between one recipient and one therapist.

(3) Crisis visit: shall be reimbursed for services of at least 30 minutes in duration of face-to-face interaction between one recipient and one therapist.

(4) Group therapy visits: shall be reimbursed for services of at least 60 minutes duration provided to from 2 to 12 recipients and a therapist(s).

(5) Collateral visit: shall be reimbursed for:

(i) clinical support services of at least 30 minutes in duration of face-to-face interaction between one or more collaterals and one therapist with or without a recipient; or

(ii) family treatment services of at least 30 minutes in duration of face-to-face interaction among all of the following: a recipient, one or more family members, and a therapist.

(6) Group collateral visit: shall be reimbursed for:

(i) clinical support services, as defined in section 587.4(c)(5) of this Title, of at least 60 minutes in duration but not more than two hours and shall represent services to more than one recipient and/or his or her collaterals. Such visits need not include recipients but shall not include more than 12 collaterals and/or recipients in a face-to-face interaction with a therapist for which reimbursement is claimed. Such limitation does not preclude the non-reimbursed participation of additional persons in the group session but such participation shall not be separately reimbursed; or

(ii) family treatment services of at least 60 minutes in duration but not more than two hours and shall include services to more than one recipient. For each recipient participant, at least one family member shall participate. However, only one group collateral bill per recipient is allowed per day. Such visits shall not include more than 12 participants, including recipients and family members, for which reimbursement is claimed. Such limitation does not preclude the non-reimbursed participation of additional persons in the group session.

(7) Family visit: Shall be reimbursed for family treatment services, as defined in section 587.4(c) of this Title, of at least 60 minutes in duration of face-to-face interaction between one recipient, one or more of his or her family members, and one therapist. For purposes of billing family visits which meet these criteria, providers shall bill one regular visit and one collateral visit.

(b) The utilization review authority designated pursuant to section 587.6 of this Title shall conduct the following reviews regarding, at a minimum, a random 25 percent sample of recipients:

(1) a review of the appropriateness of admission to a clinic treatment program within 30 days after admission;

(2) a review of the need for continued treatment in a clinic treatment program within seven months after admission and every six months thereafter unless the recipient is:

(i) discharged out of the program and subsequently readmitted, wherein the cycle begins again; or

(ii) receiving medication therapy and medication education services only, wherein the need for continued treatment shall be reviewed every 12 months thereafter.

(c) The need for continued clinic treatment service beyond 40 visits per benefit year for adults in clinic treatment programs shall be determined, in accordance with subdivisions (e) and (f) of this section, no later than at the 40th visit during a benefit year, including 20 collateral and/or group collateral visits. Such determination shall include an estimate of the number of visits beyond 40 required for the recipient within the remaining benefit year. The need for continued clinic treatment service beyond this estimated number of visits shall be determined at or prior to the provision of the estimated number of visits during the benefit year. The need for any additional revised estimates shall be determined accordingly.

(d) The need for continued clinic treatment services beyond 40 visits per benefit year for children with a diagnosis of emotional disturbance in clinic treatment programs shall be determined, in accordance with subdivisions (e) and (f) of this section, no later than at the 40th visit during a benefit year. Such determination shall include an estimate of the number of visits beyond 40 required for the recipient within the remaining benefit year. The need for continued clinic treatment service beyond this estimated number of visits shall be determined at or prior to the provision of the estimated number of visits during the benefit year. The need of any additional revised estimates shall be determined accordingly.

(e) Determinations required in accordance with subdivisions (c) and (d) of this section shall be:

(1) completed by the treating clinician;

(2) documented in the case record; and

(3) reviewable by the Office of Mental Health or its designated agent.

(f) The determination of need for admission to or continued treatment in a clinic treatment program, in accordance with subdivisions (b)-(d) of this section, shall take the following criteria into account:

(1) the recipient's history, diagnosis, prognosis, progress or lack thereof; and

(2) the availability of a viable alternative program; or

(3) the receipt of clozapine medication therapy; or

(4) for adults, service mandated by an order of conditions issued pursuant to section 330.20 of the Criminal Procedure Law; or

(5) for children, that a recipient would be unable to continue functioning in the family setting.

(g) The treatment plan required pursuant to section 587.16 of this Title shall be developed prior to the fourth visit after admission or within 30 days of admission, whichever comes first. Review of the treatment plan shall be every three months, unless the individual is discharged and readmitted, in which case the review cycle begins again.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.7 Standards pertaining to reimbursement for continuing day treatment programs

(a) For services provided on or after January 1, 2009, and prior to April 1, 2009, continuing day treatment visits other than collateral, group collateral and crisis visits shall be reimbursed on the basis of duration of hours provided as follows:

(1) Reimbursement shall be provided for visits of at least one hour duration.

(2) Reimbursement shall be provided for no more than five hours per recipient per day.

(b) For services provided on or after January 1, 2009, and prior to April 1, 2009, collateral visits shall be reimbursed for clinical support services of at least 30 minutes duration but not more than two hours of face-to-face interaction between one or more collaterals and one therapist with or without a recipient.

(c) For services provided on or after January 1, 2009, and prior to April 1, 2009, group collateral visits shall be reimbursed for clinical support services, in accordance with section 587.4(c) of this Title, of at least 60 minutes in duration but not more than two hours and shall represent service to more than one patient and/or his or her collaterals. Such visits need not include patients but shall not include more than 12 collaterals and/or recipients in a face-to-face interaction with a therapist.

(d) For services provided on or after April 1, 2009, continuing day treatment visits, other than collateral, group collateral, pre-admission and crisis visits, shall be reimbursed on the basis of duration of hours provided as follows:

(1) A half-day visit shall be for a minimum duration of two hours. To be eligible for reimbursement for a half-day visit, one or more medically necessary service(s) shall be provided and documented.

(2) A full-day visit shall be for a minimum duration of four hours. To be eligible for reimbursement for a full-day visit, three or more medically necessary services shall be provided and documented.

(e) For services provided on or after April 1, 2009, collateral visits shall be clinical support services of at least 30 minutes duration of face-to-face interaction documented by the provider between one or more collaterals and/or family members of the same enrolled recipient and one therapist with or without a recipient. Collateral visits shall be reimbursed as a half-day visit.

(f) For services provided on or after April 1, 2009, group collateral visits shall be clinical support services of at least 60 minutes duration of face-to-face interaction documented by the provider between collaterals and/or family members of multiple recipients of the continuing day treatment provider and one therapist with or without the recipients. Group collateral visits shall be reimbursed as a half-day visit.

(g) For services provided on or after April 1, 2009, crisis visits shall be reimbursed as a half-day visit for crisis intervention services of face-to-face interaction documented by the provider between a recipient and a therapist, regardless of the actual duration of the visit.

(h) For services provided on or after April 1, 2009, preadmission visits shall be services of at least 60 minutes duration of face-to-face interaction documented by the provider between a recipient and a therapist. Preadmission visits shall be reimbursed as a half-day visit.

(i) The utilization review authority designated pursuant to section 587.6 of this Title shall conduct the following reviews regarding, at a minimum, a random 25 percent sample of recipients:

(1) a review of the appropriateness of admission to a continuing day treatment program by the 12th visit or within 30 days after admission;

(2) a review of the need for continued treatment in a continuing day treatment program within seven months after admission and every six months thereafter.

(j) The determination of need for admission to or continued treatment in a continuing day treatment program shall be reviewable by the Office of Mental Health or its designated agent, and shall take the following criteria into account:

(1) the recipient's history, diagnosis, prognosis, progress or lack thereof;

(2) whether the recipient requires services at that level of care, or would be more appropriately discharged or referred to another program; and

(3) if applicable, the availability of a viable alternative program.

(k) The treatment plan required pursuant to section 587.16 of this Title shall be completed prior to the 12th visit after admission or within 30 days of admission, whichever occurs first. Review of the treatment plan shall be every three months.

(l) The need for continuing day treatment benefits beyond 156 visits per year shall be determined in accordance with subdivision (m) of this section, no later than the 156th visit during such year. Such determination shall include an estimate of the number of visits beyond 156 required for the recipient within the remaining year. The need for continued continuing day treatment benefit beyond this estimated number of visits shall be determined at or prior to the provision of the estimated number of visits during the year. The need for any additional revised estimates shall be determined accordingly.

(m) Determinations required in accordance with subdivision (l) of this section shall be:

(1) completed by the treating clinician;

(2) documented in the case record; and

(3) reviewable by the Office of Mental Health or its designated agent.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.8 Standards pertaining to reimbursement for day treatment programs serving children

(a) Day treatment programs serving children shall receive reimbursement for the following types of visits:

(1) Full day visit: shall be reimbursed for services of at least five hours in duration.

(2) Half day visit: shall be reimbursed for services of at least three hours in duration but not more than five hours.

(3) Brief day visit: shall be reimbursed for services of at least one hour in duration but not more than three hours.

(4) Collateral visit: shall be reimbursed for services of at least 30 minutes in duration.

(5) Home visit: shall be reimbursed for services of at least 30 minutes in duration.

(6) Crisis visit: shall be reimbursed for services of at least 30 minutes in duration.

(7) Preadmission visit - full day: shall be reimbursed for services of at least five hours in duration.

(8) Preadmission visit - half day: shall be reimbursed for services of at least three hours in duration but not more than five hours.

(b) The utilization review authority designated pursuant to section 587.6 of this Title shall conduct the following reviews regarding, at a minimum, a random 25 percent sample of recipients:

(1) a review of the appropriateness of admission to a day treatment program for children within 30 days after admission;

(2) a review of the need for continued treatment in a day treatment program for children within seven months after admission and every six months thereafter.

(c) The determination of need for admission to or continued treatment in a day treatment program for children shall be reviewable by the Office of Mental Health or its designated agent.

(d) The treatment plan required pursuant to section 587.16 of this Title shall be completed within 30 days of admission. Review of the treatment plan shall be every three months.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.9 Standards pertaining to reimbursement for partial hospitalization programs

(a) Partial hospitalization visits shall be reimbursed on the basis of duration of hours provided as follows:

(1) Reimbursement shall be provided for visits of at least four hours in duration and not more than seven hours per recipient per day.

(2) Reimbursement for partial hospitalization shall be limited to no more than 180 hours per course of treatment per recipient within a partial hospitalization program. A course of treatment shall not exceed six calendar weeks, unless, during the course of treatment, the recipient is admitted to an inpatient psychiatric facility. Such course of treatment may be extended to include the number of days of inpatient treatment, up to a maximum of 30 days. Each course of treatment is a new admission.

(3) Reimbursement shall be limited to 360 hours per calendar year per recipient.

(4) Collateral visit: shall be reimbursed for clinical support services of at least 30 minutes in duration but not more than two hours of face-to-face interaction between one or more collaterals and one therapist with or without a recipient.

(5) Group collateral visit: shall be reimbursed for clinical support services, in accordance with section 587.4(c) of this Part, of at least 60 minutes in duration but not more than two hours and shall represent services to more than one recipient and/or his or her collaterals. Such visits need not include recipients but shall not include more than 12 collaterals and/or recipients in a face-to face interaction with a therapist.

(b) The utilization review authority designated pursuant to section 587.6 of this Title shall conduct the following reviews regarding, at a minimum, a random 25 percent sample of recipients:

(1) a review of the appropriateness of admission to a partial hospitalization program by the fourth visit after admission;

(2) a review of the need for continued treatment in a partial hospitalization program every two weeks.

(c) The determination of need for admission to or continued treatment in a partial hospitalization program shall be reviewable by the Office of Mental Health or its designated agent, and shall take the following criteria into account:

(1) the recipient's history, diagnosis, prognosis, progress or lack thereof; and

(2) whether the recipient requires services at that level of care, or would be more appropriately discharged or referred to another program.

(d) The treatment plan required pursuant to section 587.16 of this Title shall be completed prior to the fourth visit after admission. Review of the treatment plan shall be every two weeks.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.10 Standards pertaining to reimbursement for intensive psychiatric rehabilitative treatment programs

(a) Intensive psychiatric rehabilitation treatment visits shall be reimbursed on the basis of duration of hours provided as follows:

(1) Reimbursement shall be provided for visits of at least one hour in duration and not more than five hours per recipient per day.

(2) Reimbursement shall be provided for no more than 72 hours per recipient per month.

(3) Reimbursement shall be provided for no more than 720 hours per recipient per year.

(b) The utilization review authority designated pursuant to section 587.6 of this Title shall conduct the following reviews regarding, at a minimum, a random 25 percent sample of recipients:

(1) a review of the appropriateness of admission to an intensive psychiatric rehabilitation treatment program within 30 days after admission;

(2) a review of the need for continued treatment in an intensive psychiatric rehabilitation treatment program within four months after admission and every three months thereafter.

(c) The determination of need for admission to or continued treatment in an intensive psychiatric rehabilitation treatment program shall be reviewable by the Office of Mental Health or its designated agent.

(d) The referring licensed practitioner, in accordance with section 587.13(b) of this Title, or another licensed practitioner who is not affiliated with the intensive psychiatric rehabilitation treatment program, shall review the need for continued treatment four months after admission and quarterly thereafter. Such reviews shall be documented in the psychiatric rehabilitation service plan.

(e) The psychiatric rehabilitation service plan required pursuant to section 587.17 of this Title shall be completed within five visits after admission. Review of the service plan shall be every month.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.12 Enforcement of utilization review

(a) A provider of service shall exercise due diligence in complying with the requirements of this Part. Due diligence means the exercise of reasonable and appropriate efforts to ensure that reimbursement is sought only for the number of visits, duration of visits and services authorized in accordance with this Part and Part 587 of this Title, and that the treatment planning and service planning process is implemented pursuant to section 587.16 or 587.17 of this Title, and this Part.

(b) To facilitate determinations as to whether providers are exercising the requisite due diligence and are otherwise in compliance with this Part, the Office of Mental Health shall develop and maintain profiles of behavior of providers of service which shall permit comparison of data derived from the reimbursement practices of providers of service.

(c) If, based on a review of profiles of behavior and such additional information as may be available, the Office of Mental Health determines that a provider of service is not exercising due diligence in complying with the requirements of this Part, the Office of Mental Health shall give notice of the deficiency to the provider of service and may also initiate the following:

(1) request that the provider of service prepare a plan of correction, which plan shall be subject to approval by the Office of Mental Health; and

(2) provide such technical assistance as the Office of Mental Health deems necessary to assist the provider in developing and implementing an appropriate plan of correction.

(f) Notwithstanding the provisions of this section, if a provider of service seeks reimbursement in excess of the limits imposed in sections 588.9(a)(2) and (3), 588.10(a)(2) and (3) and 588.13(a)(3)(i), (ii) and (iii) of this Part, the provider shall be presumed to have knowingly and intentionally violated the provisions of this Part, whereupon the Office of Mental Health shall notify the Department of Social Services in order that the Department of Social Services may exercise its authority to recover such overpayments as may have occurred.

(g) Nothing in this section shall limit or preclude the commissioner from taking whatever immediate measures may be necessary, including the exercise of his authority under Mental Hygiene Law, sections 31.16(b) and 31.28, in the event that a recipient's health or safety is in imminent danger or there exists any condition or practice which poses imminent danger to the health or safety of any recipient or the public.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.13 Reimbursement for outpatient programs

(a) Reimbursement under the medical assistance program for outpatient programs licensed solely pursuant to article 31 of the Mental Hygiene Law and Part 587 of this Title which serve adults with a diagnosis of mental illness and children with a diagnosis of emotional disturbance shall be in accordance with the following fee schedule.

(1) Reimbursement under the medical assistance program for clinic treatment programs shall be in accordance with the following fee schedule. Such reimbursement shall be adjusted pursuant to subdivisions (i), (j) and (k) of this section.

(i) For programs operated in Bronx, Kings, New York, Queens, Richmond, Nassau, Suffolk, Putnam, Rockland and Westchester Counties:

| Regular | at least 30 minutes | $71.94 | | --- | --- | --- | | Brief | at least 15 minutes | 35.97 | | Group | at least 60 minutes | 25.18 | | Collateral | at least 30 minutes | 71.94 | | Group Collateral | at least 60 minutes | 25.18 | | Crisis | at least 30 minutes | 71.94 |

(ii) For programs operated in Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Tioga, Tompkins, Wayne, Wyoming and Yates Counties:

| Regular | at least 30 minutes | $64.75 | | --- | --- | --- | | Brief | at least 15 minutes | 32.37 | | Group | at least 60 minutes | 22.66 | | Collateral | at least 30 minutes | 64.75 | | Group Collateral | at least 60 minutes | 22.66 | | Crisis | at least 30 minutes | 64.75 |

(iii) For programs operated in Broome, Cayuga, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgomery, Oneida, Onondaga, Oswego, Otsego, St. Lawrence, Albany, Columbia, Dutchess, Greene, Orange, Rensselaer, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren and Washington Counties:

| Regular | at least 30 minutes | $63.55 | | --- | --- | --- | | Brief | at least 15 minutes | 31.77 | | Group | at least 60 minutes | 22.25 | | Collateral | at least 30 minutes | 63.55 | | Group Collateral | at least 60 minutes | 22.25 | | Crisis | at least 30 minutes | 63.55 |

(2) The minimum duration of a group or group collateral visit at a school-based clinic program shall consist of the duration of a scheduled class period at the school in which the program is based, or 60 minutes, whichever is less.

(3) Reimbursement under the medical assistance program for non-State operated continuing day treatment programs licensed pursuant to article 31 of the Mental Hygiene Law and Part 587 of this Title for services provided on or after January 1, 2009, and prior to April 1, 2009, shall be in accordance with the following fee schedule.

(i) For programs operated in Bronx, Kings, New York, Queens, Richmond, Nassau, Suffolk, Putnam, Rockland and Westchester Counties:

Regular, collateral, group collateral, and crisis visits shall be reimbursed on the basis of service hours. The reimbursement for any service hour shall be based upon the cumulative number of service hours provided in a calendar month to an individual recipient. When the service hours of any single visit include more than one rate, the provider of service shall be reimbursed at the rate that applies to the first hour of such visit. The rates of reimbursement are as follows:

| Service hour 1-50 | $12.54 per service hour | | --- | --- | | Service hour 51-80 | $8.97 per service hour | | Service hour beyond 80 | $6.61 per service hour |

(ii) For programs operated in Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Tompkins, Wayne, Wyoming and Yates Counties:

| Service hour 1-50 | $11.29 per service hour | | --- | --- | | Service hour 51-80 | $8.97 per service hour | | Service hour beyond 80 | $6.61 per service hour |

(iii) For programs operated in Broome, Cayuga, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgomery, Oneida, Onondaga, Oswego, Otsego, St. Lawrence, Tioga, Albany, Columbia, Dutchess, Greene, Orange, Rensselaer, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren and Washington Counties:

Regular, collateral, group collateral, and crisis visits shall be reimbursed on the basis of service hours. The reimbursement for any service hour shall be based upon the cumulative number of service hours provided in a calendar month to an individual recipient. When the service hours for any single visit include more than one rate, the provider of service shall be reimbursed at the rate that applies to the first hour of such visit. The rates of reimbursement are as follows:

| Service hour 1-50 | $11.08 per service hour | | --- | --- | | Service hour 51-80 | $8.97 per service hour | | Service hour beyond 80 | $6.61 per service hour |

(4) Reimbursement under the medical assistance program for non-state operated continuing day treatment programs licensed solely pursuant to article 31 of the Mental Hygiene Law, and Part 587 of this Title for services provided on or after April 1, 2015, shall be in accordance with the following fee schedule. The reimbursement for any regular visit shall be based upon the cumulative number of program hours provided in a calendar month to an individual recipient, excluding time spent in meals, adding two hours for each half-day visit and four hours for each full-day visit. Collateral, group collateral pre-admission and crisis visits will be reimbursed at the half-day rate for program hours 1-40 regardless of the cumulative total of hours for regular visits in that month. Collateral, group collateral, pre-admission and crisis visits shall not be included in the calculation of the cumulative total hours in the program for a recipient. When the program hours of any single visit include more than one rate, the provider of service shall be reimbursed at the rate that applies to the first hour of such visit. Regular visits shall be reimbursed on the basis of program attendance and service provision as set forth in section 588.7 of this Part. The rates of reimbursement are as follows:

(i) For programs operated in Bronx, Kings, New York, Queens, Richmond, Nassau, Suffolk, Putnam, Rockland and Westchester counties:

| Program hours 1-40 | $62.07 full day (4 hours) | | --- | --- | | Program hours 1-40 | $31.04 half day (2 hours) | | Program hours 41-64 | $46.56 full day (4 hours) | | Program hours 41-64 | $23.28 half day (2 hours) | | Program hours 65+ | $34.30 full day (4 hours) | | Program hours 65+ | $17.16 half day (2 hours) | | Collateral | $31.04 | | Group Collateral | $31.04 | | Crisis | $31.04 | | Pre-Admission | $31.04 |

| Program hours 1-40 | $55.92 full day (4 hours) | | --- | --- | | Program hours 1-40 | $27.96 half day (2 hours) | | Program hours 41-64 | $46.60 full day (4 hours) | | Program hours 41-64 | $23.60 half day (2 hours) | | Program hours 65+ | $34.34 full day (4 hours) | | Program hours 65+ | $17.17 half day (2 hours) | | Collateral | $27.96 | | Group Collateral | $27.96 | | Crisis | $27.96 | | Pre-Admission | $27.96 |

(iii) For programs operated in Broome, Cayuga, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgomery, Oneida, Onondaga, Oswego, Otsego, St. Lawrence, Tioga, Albany, Columbia, Dutchess, Greene, Orange, Rensselaer, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren and Washington counties:

| Program hours 1-40 | $54.92 full day (4 hours) | | --- | --- | | Program hours 1-40 | $27.47 half day (2 hours) | | Program hours 41-64 | $46.63 full day (4 hours) | | Program hours 41-64 | $23.32 half day (2 hours) | | Program hours 65+ | $34.36 full day (4 hours) | | Program hours 65+ | $17.19 half day (2 hours) | | Collateral | $27.47 | | Group Collateral | $27.47 | | Crisis | $27.47 | | Pre-Admission | $27.47 |

(b) Reimbursement under the medical assistance program for non-State operated continuing day treatment programs licensed pursuant to article 31 of the Mental Hygiene Law and operated by agencies licensed pursuant to article 28 of the Public Health Law, and Part 587 of this Title shall be in accordance with the following fee schedule:

(1) For services provided on or after April 1, 2015, the reimbursement for any regular visit shall be based upon the cumulative number of program hours provided in a calendar month for an individual recipient, excluding time spent in meals, adding two hours for each half-day visit and four hours for each full-day visit. Collateral, group-collateral, pre-admission and crisis visits will be reimbursed at the half-day rate for program hours 1-40 regardless of the cumulative total of hours for regular visits in that month. Collateral, group collateral, pre-admission and crisis visits shall not be included in the calculation of the cumulative total hours in the program for a recipient. When the program hours of any single visit include more than one rate, the provider of service shall be reimbursed at the rate that applies to the first hour of such visit. Regular visits shall be reimbursed on the basis of program attendance and program provision as set forth in section 588.7 of this Part. The rates of reimbursement are as follows:

| Program hours 1-40 | $62.16 full day (4 hours) | | --- | --- | | Program hours 1-40 | $41.65 half day (2 hours) | | Program hours 41+ | $46.62 full day (4 hours) | | Program hours 41+ | $31.23 half day (2 hours) | | Collateral | $41.65 | | Group Collateral | $41.65 | | Crisis | $41.65 | | Pre-Admission | $41.65 |

(2) For amounts paid under this subdivision:

(i) There shall be added an allowance for the cost of capital, which shall be determined by the application of the principles of cost-finding for the Medicare program. No capital expenditure for which approval by the office is required under the applicable provisions of the Mental Hygiene Law or Part 551 of this Title shall be included in allowable capital costs for purposes of rate computation unless such approval has been secured.

(ii) Allowable capital expenditures shall not include costs specifically excluded pursuant to section 2807-c of the Public Health Law.

(iii) The capital payment per visit for a provider's continuing day treatment programs shall be determined by dividing all allowable capital costs of the provider's licensed outpatient mental health clinic, day treatment, and continuing day treatment, after deducting any exclusions, by the sum of the total number of visits for such programs.

(c) Effective April 1, 2015, reimbursement under the medical assistance program for day treatment programs serving children licensed solely pursuant to article 31 of the Mental Hygiene Law, and Part 587 of this Title shall be in accordance with the following fee schedule.

(1) For programs operated in Bronx, Kings, New York, Queens and Richmond Counties:

| Full day | at least 5 hours | $98.36 | | --- | --- | --- | | Half day | at least 3 hours | 49.19 | | Brief day | at least 1 hour | 32.79 | | Collateral | at least 30 minutes | 32.79 | | Home | at least 30 minutes | 98.36 | | Crisis | at least 30 minutes | 98.36 | | Preadmission - full day | at least 5 hours | 98.36 | | Preadmission - half day | at least 3 hours | 49.19 |

(2) For programs operated in other than Bronx, Kings, New York, Queens and Richmond Counties:

| Full day | at least 5 hours | $95.08 | | --- | --- | --- | | Half day | at least 3 hours | 47.54 | | Brief day | at least 1 hour | 31.64 | | Collateral | at least 30 minutes | 31.64 | | Home | at least 30 minutes | 95.08 | | Crisis | at least 30 minutes | 95.08 | | Preadmission - full day | at least 5 hours | 95.08 | | Preadmission - half day | at least 3 hours | 47.54 |

(d) Providers whose reimbursement under the medical assistance program for clinic, continuing day treatment, and/or day treatment has been supplemented in accordance with Part 592 of this Title will have this additional reimbursement limited in total to an amount established by the commissioner which shall be subject to the availability of appropriations in the Office of Mental Health's budget. Supplemental reimbursement received in excess of this threshold will be recovered in a succeeding year through the medical assistance recovery process authorized pursuant to section 368-c of the Social Services Law.

(e) Effective April 1, 2015, reimbursement under the medical assistance program for regular, collateral and crisis visits to all non-State operated partial hospitalization programs licensed pursuant to article 31 of the Mental Hygiene Law and Part 587 of this Title shall be in accordance with the following fee schedule:

(1) For programs located in Nassau and Suffolk Counties, the fee shall be $29.10 for each service hour.

(2) For programs located in New York City, the fee shall be $38.22 for each service hour.

(3) For programs located in the counties in the region of New York State designated by the Office of Mental Health as the Hudson River Region, the fee shall be $32.10 for each service hour.

(4) For programs located in the counties in the region of New York State designated by the Office of Mental Health as the Central Region, the fee shall be $22.12 for each service hour.

(5) For programs located in the counties in the region of New York State designated by the Office of Mental Health as the Western Region, the fee shall be $27.28 for each service hour.

(f) Effective April 1, 2015, reimbursement under the medical assistance program for on-site and off-site visits for all non-State operated intensive psychiatric rehabilitation treatment programs licensed pursuant to article 31 of the Mental Hygiene Law and Part 587 of this Title shall be at $24.97 for each service hour.

(g) The commissioner will only consider requests for revisions of rates calculated under the provisions of this section due to errors made by the Office of Mental Health in the calculation of the rates.

(1) A request for revision of a certified fee calculated in accordance with subdivision (a) of this section shall be sent to the commissioner by registered or certified mail and shall contain a detailed statement of the basis for the requested revision together with any documentation that the provider of service wishes to submit.

(2) A request for revision must be submitted within 120 days of receipt by the provider of service of the rate computation sheet.

(3) The provider of service shall be notified in writing of the commissioner's determination, including a statement of the reasons thereof.

(h) Clinic, continuing day treatment, and/or day treatment programs for which an operating certificate has been issued and which are not designated as Level I comprehensive outpatient programs pursuant to Part 592 of this Title may qualify to become Level II comprehensive outpatient programs under such Part, and shall comply with the applicable provisions of such Part.

(i) Clinic treatment programs for which an operating certificate has been issued shall receive an adjustment to the fee schedules set forth in paragraph (a)(1) of this section if they are enrolled in a continuous quality improvement initiative implemented by the commissioner. In order to be enrolled in such continuous quality improvement initiative, the program shall execute an agreement with the Office of Mental Health under which the provider agrees to participate in such initiative, and undertake such quality improvement measures as shall be developed by the commissioner.

(j) Any program eligible to receive supplemental medical assistance reimbursement pursuant to subdivision (i) of this section, and which fails at any time to meet the requirements set forth in the agreement executed pursuant to such subdivision, shall have its continuous quality improvement adjustment suspended until such time as the program meets such requirements, as determined by the commissioner.

(k) A clinic treatment program that has been approved by the Office of Mental Health to provide services to children and adolescents during evening and weekend hours shall receive a rate enhancement for regular or collateral clinic visits provided to recipients under the age of 18 years, when such services are provided during weekdays commencing 6 p.m. or later, or on a Saturday or Sunday, provided, however, that an enhanced rate shall only be paid for one visit provided for a recipient on any given day.

(l) Outpatient services operated by agencies licensed under article 28 of the Public Health Law which are also licensed pursuant to article 31 of the Mental Hygiene Law shall not be considered to be specialty services pursuant to section 2807 (2)(g) of the Public Health Law.

History

Amended, New York State Register October 8, 2014/Volume XXXVI, Issue 40, eff. 10/8/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.14 Supplemental reimbursement for community support program services

(a) In addition to the medical assistance reimbursement rates available pursuant to Part 579 of this Title and section 588.13 of this Part, providers operating one or more outpatient programs licensed pursuant to Part 585 or 587 of this Title may be eligible to receive supplemental medical assistance reimbursement for community support program services in accordance with this section. For purposes of this section:

(1) community support program services means community-based services supported by State and local aid for local or unified services pursuant to article 41 of the Mental Hygiene Law, or community-based services supported by 100 percent State aid;

(2) local aid means local share of funds which support services for persons with mental illness, comprised of local tax levy funds or contributions from voluntary agencies; and

(3) State aid means State funds which support local or unified services for persons with mental illness, with or without matching local aid.

(b) A provider shall be eligible for supplemental reimbursement pursuant to this section if the provider:

(1) operates a clinic treatment program, continuing day treatment program or day treatment program licensed pursuant to Part 585 or 587 of this Title;

(2) directly provides community support program services pursuant to a contract with the local governmental unit or the Office of Mental Health;

(3) is not operated by the Office of Mental Health; and

(4) is not operated by a general hospital as defined in article 28 of the Public Health Law, that is also considered to be a voluntary agency as defined in article 41 of the Mental Hygiene Law.

(c) For purposes of this section, all providers operated by the New York City Health and Hospitals Corporation which are eligible for supplemental reimbursement pursuant to subdivision (b) of this section shall be considered, in combination, a single eligible provider.

(d) Supplemental reimbursement rates shall be calculated by the Office of Mental Health for each eligible provider. The supplemental reimbursement rate, effective November 1, 1997, shall be calculated as follows:

(1) Grants from State aid or local aid for community support program services for the local fiscal year ended in 1997 for upstate and Long Island-based providers, and for the local fiscal year ended in 1998 for New York City-based providers, will be estimated for each eligible provider. For purposes of this section, unless otherwise specified, such period shall be considered the base year. Such estimates shall not include:

(i) grants received pursuant to section 41.55 of the Mental Hygiene Law;

(ii) grants to housing programs;

(iii) any portion of grants to community support programs for services which are reimbursed by medical assistance during the base year;

(iv) any portion of grants to an eligible provider for community support program services which are delivered by another provider of service through a contract with the eligible provider;

(v) grants received from the Federal government;

(vi) any portion of grants to community support programs for services which are supported by contributions from voluntary agencies; or

(vii) any portion of grants determined by the Office of Mental Health to be eligible for continued State aid.

(2) Grants estimated pursuant to paragraph (1) of this subdivision shall be adjusted to reflect:

(i) the percentage of community support program services which are determined by the Office of Mental Health to be eligible for medical assistance reimbursement, consistent with Federal standards; and

(ii) the percentage of community support program services provided to recipients who are eligible for medical assistance.

(3) The combined total of clinic treatment, continuing day treatment, and day treatment units of service reimbursed by medical assistance shall be calculated for each provider for each of the three local fiscal years immediately prior to the base year. Such units of service shall exclude collateral, group collateral, and home visits provided by an outpatient program operated by a general hospital as defined in article 28 of the Public Health Law. The average of the three annual totals shall be calculated.

(4) Grants, as recalculated pursuant to paragraph (2) of this subdivision, shall be divided by the average annual units of service calculated pursuant to paragraph (3) of this subdivision. The community support program rate cap will be established by the Commissioner of Mental Health and approved by the Director of the Division of the Budget.

(5) The calculation pursuant to paragraph (4) of this subdivision shall be divided by 89 percent. Such calculation shall be the provider's supplemental reimbursement rate.

(6) On an annual basis, the Office of Mental Health shall re-evaluate the percentage used in the calculation pursuant to paragraph (5) of this subdivision. Upon modification of such percentage, all providers' supplemental rates shall be recalculated.

(7) On an annual basis, the Office of Mental Health shall conduct a review of the number of units of service calculated pursuant to paragraph (3) of this subdivision for each provider. For purposes of such analyses, the most recently completed local fiscal year shall be used as the base year. As appropriate, supplemental reimbursement rates shall be recalculated, including any recalculations pursuant to paragraph (6) of this subdivision.

(8) Rates calculated or recalculated pursuant to this section are subject to appeal by the local governmental unit, or by the provider with the approval of the local governmental unit. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, such provider may request an appeal without the approval of the local governmental unit. Appeals pursuant to this paragraph shall be made within one year after receipt of initial notification of the most recent supplemental reimbursement rate calculation or recalculation.

(e) The supplemental reimbursement rate calculated pursuant to subdivision (d) of this section shall be added to the reimbursement rates for each clinic treatment, continuing day treatment, and day treatment program operated by the provider and licensed pursuant to Part 585 or 587 of this Title. In outpatient programs operated by a general hospital as defined in article 28 of the Public Health Law, the following visit categories shall not be eligible for the supplemental reimbursement rate:

(1) collateral and group collateral visits in clinic treatment and continuing day treatment programs; and

(2) collateral and home visits in day treatment programs.

(f) Supplemental payments which are in excess of 100 percent of the grants calculated pursuant to paragraph (d)(2) of this section will be subject to recovery by the Office of Mental Health through adjustment of future payments. In cases where recoveries are necessary, the Office of Mental Health may adjust the supplemental rate prospectively.

(g) If supplemental payments are less than the grants calculated pursuant to paragraph (d)(2) of this section, the Office of Mental Health shall, upon the request of the local governmental unit, amend the supplemental reimbursement rate to ensure maintenance of historical levels of funding for community support program services. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, such provider may request a rate amendment without the approval of the local governmental unit. In the event that amendment of the supplemental reimbursement rate, consistent with the provisions of paragraph (d)(4) of this section, will not ensure the maintenance of historical levels of funding for community support program services, the State aid portion of the grants pursuant to paragraph (d)(2) of this section, commensurate with the shortfall, shall be allocated to the local governmental unit as State aid. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, such State aid shall be allocated to the provider. State aid allocated pursuant to this subdivision shall be subject to the availability of appropriations in the Office of Mental Health's budget and the approval of the director of the State Division of the Budget.

(h) Providers in receipt of supplemental reimbursement pursuant to this section shall, at a minimum, maintain the level of provision of community support program services or the expenditures for such services, consistent with the level of such services provided in the most recent local fiscal year in which such services were supported by State or local aid, including any portion of grants which were supported by contributions from voluntary agencies. If a provider reduces the provision of community support program services or the expenditures for such services subsequent to the calculation of the supplemental reimbursement rate pursuant to subdivision (d) of this section, and such reduced services are not transferred to another provider, the supplemental reimbursement rate, upon the recommendation of the local governmental unit, shall be adjusted in proportion to the reduction in community support program services. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, the recommendation of the local governmental unit is not required. Commensurate with the service reduction, the State aid portion of grants pursuant to paragraph (d)(2) of this section shall be allocated to the local governmental unit as State aid, upon the request of the local governmental unit. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, such State aid shall be allocated to the provider. State aid allocated pursuant to this paragraph shall be subject to the availability of appropriations in the Office of Mental Health's budget and the approval of the director of the State Division of the Budget.

(i) If a provider in receipt of supplemental reimbursement pursuant to this section transfers or closes one or more community support programs, or portions thereof, which were supported by grants included in the calculation of the supplemental reimbursement rate pursuant to paragraph (d)(4) of this section, such provider's supplemental reimbursement rate or grants shall be adjusted as follows:

(1) If a community support program, or a portion thereof, is transferred to another eligible provider within the same local governmental unit, the supplemental rate will be eliminated or recalculated for each eligible provider, upon the approval of the local governmental unit, commensurate with the new level of community support program services provided. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, the recommendation of the local governmental unit is not required. In the event that amendment of the supplemental reimbursement rate, consistent with the provisions of paragraph (d)(4) of this section, will not ensure the maintenance of historical levels of funding for community support program services, the State aid portion of the grants pursuant to paragraph (d)(2) of this section, commensurate with the shortfall, shall be allocated to the local governmental unit as State aid. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, such State aid shall be allocated to the provider. State aid allocated pursuant to this paragraph shall be subject to the availability of appropriations in the Office of Mental Health's budget and the approval of the director of the State Division of the Budget.

(2) If a community support program, or a portion thereof, is transferred to another provider which is not eligible for supplemental reimbursement pursuant to subdivision (b) of this section, or is closed without transfer to another provider, the State aid portion of grants pursuant to paragraph (d)(2) of this section commensurate with the program transfer or closure shall be allocated, upon request by the local governmental unit, to the local governmental unit as State aid. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, such State aid shall be allocated to the provider. State aid allocated pursuant to this paragraph shall be subject to the availability of appropriations in the Office of Mental Health's budget and the approval of the director of the State Division of the Budget.

(j) If a provider operating a clinic treatment program, continuing day treatment program or a day treatment program licensed pursuant to Part 585 or 587 of this Title subsequently closes all such programs, the State aid portion of grants pursuant to paragraph (d)(2) of this section shall be allocated, upon request by the local governmental unit, to the local governmental unit as State aid. If a provider offers community support program services solely pursuant to a contract with the Office of Mental Health, such State aid shall be allocated to the provider. State aid allocated pursuant to this subdivision shall be subject to the availability of appropriations in the Office of Mental Health's budget and the approval of the director of the State Division of the Budget.

(k) Providers in receipt of supplemental reimbursement pursuant to this section shall:

(1) assure that community support program services for recipients who are eligible for medical assistance are provided pursuant to the recommendation of a licensed practitioner, as defined in Part 587 of this Title, and that there is a process for maintaining any records of such recommendations; and

(2) submit to the Office of Mental Health or the local governmental unit, upon request, all cost, utilization, programmatic or clinical reports or documentation required.

(l) In the event that the local share of the supplemental medical assistance reimbursement commensurate with the grants described in paragraph (d)(4) of this section exceeds the estimated local tax levy portion of local aid, as described in paragraph (d)(2) of this section, for all eligible providers within the local governmental unit's jurisdiction, the State shall reimburse the local government for such excess, subject to the availability of appropriations in the Office of Mental Health's budget and the approval of the director of the State Division of the Budget.

(m) Receipt of supplemental reimbursement pursuant to this section shall not affect receipt of supplemental reimbursement available to a provider pursuant to Part 592 of this Title.

(n) Nothing in this section is intended to alter the existing role, responsibility or authority of local governmental units pursuant to article 41 of the Mental Hygiene Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 588.15 Exemptions

Providers of service shall be exempt from sections 588.5(k)(4) and 588.6(b)-(d) of this Part as they relate to recipients who are currently enrolled in a managed care organization which is certified or approved by the Commissioner of the New York State Department of Health, and who are currently receiving services which are covered by the benefit package of the managed care organization.

Part 589 Operation Of Crisis Residence

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.1 Background and intent

(a) The purpose of this Part is to establish standards for the operation of the crisis residence program which provides short-term residential support to persons exhibiting symptoms of mental illness who are experiencing a psychiatric crisis. Crisis residence programs provide short-term interventions to individuals experiencing crisis, to address the cause of the crisis and to avert or delay the need for acute psychiatric inpatient hospitalization or emergency room admission. Crisis residence programs are appropriate for individuals who are experiencing a period of acute stress that significantly impairs the capacity to cope with normal life circumstances. The program provides mental health services that address the psychiatric and behavioral health needs of the individuals.

(b) The purpose of this Part is to describe requirements for the establishment and operation of crisis residence programs; establish the requirements for admission and discharge; and specify the requirements for staffing, services, service planning, quality assurance, recordkeeping and certification.

(c) The purpose of this Part is to establish standards for three types of crisis residences: Residential Crisis Support, Intensive Crisis Residence and Children's Crisis Residence. Each crisis residence will meet the requirements of this part.

(d) This Part provides for the active involvement of identified supports, including but not limited to the family of a recipient where appropriate, in all aspects of the admission, treatment and discharge of that recipient.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.2 Legal base

(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 their jurisdiction and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for persons experiencing symptoms of mental illness pursuant to an operating certificate.

(b) Section 31.02 of the Mental Hygiene Law prohibits the operation of residential programs providing services for persons experiencing symptoms of mental illness, unless an operating certificate has been obtained from the commissioner.

(c) The Mental Hygiene Law, sections 31.05, 31.07, 31.09, 31.13 and 31.19 further authorize the commissioner or their representatives to examine and inspect such programs to determine their suitability and proper operation. Sections 31.15 and 31.17 authorize the commissioner to suspend, revoke, or limit any operating certificate.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.3 Applicability

(a) This Part applies to any provider of services who operates or proposes to operate a crisis residence program for persons experiencing symptoms of mental illness. Such programs are a subclass of community residence, pursuant to section 1.03 of the Mental Hygiene Law.

(b) This Part applies to the operation or proposed operation of a crisis residence program for persons experiencing symptoms of mental illness provided by a general hospital, as defined in article 28 of the Public Health Law.

(c) This Part applies to the operation or proposed operation of a crisis residence program for persons experiencing symptoms of mental illness by a provider of services for persons experiencing symptoms of mental illness licensed pursuant to article 31 of the Mental Hygiene Law.

(d) This Part applies to the operation or proposed operation of a crisis residence program for persons experiencing symptoms of mental illness provided by a state-operated psychiatric center.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.4 Definitions

For purposes of this Part terms used shall have the meanings identified in Part 501 of this Title and in accordance with the following:

(a) Admission criteria means those factors which are identified by the provider of service for use in determining an individual's eligibility for admission to a crisis residence program.

(b) Clinical staff means professional, para-professional and non-professional staff members who provide residential crisis services directly to recipients.

(c) Collaterals means an individual who is a member of the recipient's family or household, or other individual who interacts with the recipient and is directly affected by or has the capability of affecting their condition and is identified in the individual service plan as having a role in treatment and/or is necessary for participation in the evaluation and assessment of the recipient prior to admission.

(d) Co-occurring disorder means the diagnosis of at least one disorder in both of the following areas: substance use disorder (e.g. addiction, alcoholism, chemical dependency and drug abuse), mental health disorder (e.g. personality disorder; a mood disorder like depression, anxiety, or bipolar; schizophrenia; post-traumatic stress disorder).

(e) Crisis residence means a short-term residential program designed to provide residential and support services to persons with symptoms of mental illness who are at risk of or experiencing a psychiatric crisis.

(1) A Residential Crisis Support Program means a short-term residential program up to 28 days for individuals who are experiencing symptoms of mental illness, psychiatric crisis or are experiencing challenges in daily life that create risk for an escalation of psychiatric symptoms that cannot reasonably be managed in the person's home and/or community environment without onsite supports and do not pose likelihood of serious harm.

(2) An Intensive Crisis Residence Program means a short-term, residential and treatment program, up to 28 days for individuals who are experiencing a psychiatric crisis, which includes acute escalation of mental health symptoms and do not pose likelihood of serious harm.

(3) A Children's Crisis Residence Program means a short-term residential program, up to 21 days, which provides continuous monitoring and supervision as well as intensive crisis treatment and support for children who are at risk of experiencing a psychiatric crisis and do not pose likelihood of serious harm.

(f) Discharge criteria means those factors which are used to determine that a recipient is no longer in need of or eligible for treatment within a crisis residence program.

(g) Facility means any place in which services for the mentally ill are provided and which either requires an operating certificate under article 31 of the Mental Hygiene Law or is operated by the Office of Mental Health. In the case of a hospital as defined in article 28 of the Public Health Law, facility shall mean only that part of the hospital which is operated for the purpose of providing services for the mentally ill.

(h) Family means those members of the recipient's natural family, family or choice, or household who interact with the recipient and are directly affected by, or have the capability of affecting, the recipient's condition.

(i) Individual Service plan means a written plan based on the assessment of the mental health status and needs of a recipient, establishing their treatment and rehabilitative goals and determining what services may be provided to assist the recipient in accomplishing these goals.

(j) Likelihood of serious harm shall have the same meaning as the term is defined in section 9.01 of the Mental Hygiene Law.

(k) Mental illness means a health condition involving changes in behavior, emotion, thinking or judgment (or a combination of these) that are associated with distress and/or problems functioning in social, work or family activities.

(l) Medication management and training means activities which provide information to ensure appropriate management of medication through understanding the role and effects of medication in treatment, identification of side effects of medication and discussion of potential dangers of consuming other substances while on medication. Training in self-medication skills is also an appropriate activity when developmentally and clinically indicated.

(m) Medication monitoring means activities performed by staff which relate to storage, monitoring, recordkeeping, and supervision associated with the use of medication. Such activities include reviewing the appropriateness of an existing regimen by staff with the prescribing physician. Prescribing medication is not an activity included under this service.

(n) Medication therapy means the process of determining the medication to be utilized during the course of treatment; reviewing the appropriateness of the resident's existing medication regimen through review of the resident's medication record and consultation with the resident and, as appropriate, their family or guardian; prescribing and/or administering medication; and monitoring the effects and side effects of the medication on the resident's mental and physical health.

(o) Para-professional staff means individuals 18 years of age or older with a High School diploma or equivalent and 1-3 years of relevant experience or a bachelor's degree employed or under contract with a provider of services.

(p) Peer support specialist or peer means an individual who is a current or former recipient of mental health services who provide support for other service users through a model of shared personal experience. Peer support specialists may include: peer advocate, family peer advocate and youth peer advocate. Peers may seek certification and provide services that include but are not limited to: systems advocacy, prevention, outreach, engagement, hospital diversion, information, referral, self-health and peer support.

(q) Professional staff means practitioners possessing a license or a permit from the New York State Education Department who are qualified by credentials, training, and experience to provide direct services related to the treatment of mental illness.

(r) Psychiatric crisis means a situation that requires immediate attention in which a person with serious mental illness, as defined in Section 1.03 of the Mental Hygiene Law, cannot manage their mental health symptoms without de-escalation or intervention, or in which the challenges in daily life have resulted in, or are at risk of resulting in, an escalation in mental health symptoms.

(s) For the purposes of this Part qualified mental health staff person means:

(1) a physician who is currently licensed as a physician by the New York State Education Department;

(2) a psychiatrist is an individual who is currently licensed as a physician by the New York State Education Department, and is a diplomat of the American Board of Psychiatry and Neurology or is eligible to be certified by that board; or is certified by the American Osteopathic Board of Neurology and Psychiatry or is eligible to be certified by that board.

(3) a psychologist who is currently licensed as a psychologist by the New York State Education Department;

(4) a social worker who is either currently licensed as a licensed master social worker or as a licensed clinical social worker by the New York State Education Department or has a master's degree in social work from a program approved by the New York State Education Department;

(5) a registered nurse who is currently licensed as a registered professional nurse by the New York State Education Department, including Clinical Nurse Specialist;

(6) a creative arts therapist who is currently licensed as a creative arts therapist by the New York State Education Department;

(7) a marriage and family therapist who is currently licensed as a marriage and family therapist by the New York State Education Department;

(8) a mental health counselor who is currently licensed as a mental health counselor by the New York State Education Department;

(9) a psychoanalyst who is currently licensed as a psychoanalyst by the New York State Education Department;

(10) a nurse practitioner who is currently certified as a nurse practitioner by the New York State Education Department;

(11) an individual having education, experience and demonstrated competence, as defined below:

(i) a master's or bachelor's degree in a human services related field;

(ii) For Purposes of Residential Crisis Support and Intensive Crisis Support, the following are included as qualified mental health staff person:

(a) an associate's degree in a human services related field and three years' experience in human services;

(b) a high school degree including GED and five years' experience in human services; or

(13) a certified rehabilitation counselor currently certified by The Commission on Rehabilitation Counselor Certification (CRCC); or

(14) other professional disciplines which receive the written approval of the Office of Mental Health.

(t) Recipient means a person who is receiving services at a crisis residence.

(u) Self-preservation means that an individual has sufficient:

(1) capacity to recognize the physical danger of fire;

(2) judgment to recognize when such danger requires immediate egress from the residence;

(3) capacity to follow a prescribed route of egress; and

(4) physical mobility to accomplish such egress.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.5 Certification

(a) Each provider of services that intends to operate a crisis residence program must be issued an operating certificate by the Office of Mental Health prior to operation of the program.

(b) Each crisis residence shall be issued an operating certificate that specifies the type of crisis residence the provider of services is authorized to operate:

(1) Intensive Crisis Residence Program

(i) The purpose of an Intensive Crisis Residence Program is to stabilize a recipient who is experiencing an acute psychiatric crisis and requires appropriate on-site daily monitoring and treatment services and prepare the recipient for a subsequent level of care.

(ii) Individuals eligible for admission to an intensive crisis residence program are persons exhibiting symptoms of a mental illness and psychiatric crisis and are at least 18 years of age.

(iii) An Intensive Crisis Residence shall not have fewer than 3 beds and shall not exceed 16 beds.

(iv) An Intensive Crisis Residence Program shall conduct an admissions assessment to determine appropriateness of admission and offer each of the following treatment and support services, consistent with a recipient's condition and needs that includes but is not limited to:

(a) comprehensive assessment;

(b) medication management and training;

(d) medication therapy;

(e) individual and group counseling;

(f) engagement and support to address co-occurring disorders;

(g) assistance in personal care and activities of daily living;

(h) peer support;

(i) engagement with identified supports;

(j) safety planning;

(k) integration of direct care and support services;

(l) case management activities which emphasize discharge planning and includes continuity of care between service transitions;

(m) collaboration and linkages with service options in the community which provide continuation of ongoing treatment and rehabilitation;

(n) crisis respite; and

(o) room and board.

(2) Residential Crisis Support Program.

(i) The purpose of a Residential Crisis Support Program is to stabilize an individual who is experiencing a psychiatric crisis through integrated rehabilitation, and support services and improve their functioning while maintaining social, family and community ties in accordance with an individual service plan.

(ii) Individuals eligible for admission to a Residential Crisis Support Program are persons exhibiting symptoms of mental illness who are at least 18 years of age.

(iii) A Residential Crisis Support Program shall not have fewer than 3 beds, and shall not exceed 16 beds.

(iv) A Residential Crisis Support Program shall conduct an admissions assessment to determine appropriateness of admission and offer each of the following support services consistent with a recipient's condition and needs:

(a) assistance in personal care and activities of daily living;

(b) peer support;

(d) safety planning;

(e) integration of direct care and support services;

(f) case management activities which emphasize discharge planning ;

(g) collaboration and linkages with service options in the community which provide continuation of ongoing treatment and rehabilitation;

(h) medication management and training;

(i) medication monitoring;

(j) crisis respite; and

(k) room and board.

(3) Children's Crisis Residence Program

(i) The purpose of a Children's Crisis Residence Program is to stabilize a child's psychiatric crisis symptoms and restore the child to a level of functioning and stability that supports their transition to community-based services, supports, and resources to prevent or reduce future psychiatric crises.

(ii) Individuals eligible for admission to a Children's Crisis Residence Program are children or youth who have attained at least the 5^th birthday but not the 21^st who are experiencing or at risk of experiencing a psychiatric crisis.

(iii) A Children's Crisis Residence Program shall not exceed 8 beds.

(iv) A Children's Crisis Residence Program shall offer each of the following treatment and support services in a trauma-sensitive, safe and therapeutic living environment consistent with recipient's condition and needs that includes but is not limited to:

(a) comprehensive intake assessment including:

(1) comprehensive risk assessment and crisis planning; and

(2) health screening for physical health conditions;

(b) individual, group and family crisis counseling;

(d) medication management and training;

(e) one to one monitoring for recipients assessed with high risk behavior;

(f) respite;

(g) behavior support, including skill building for managing behavior and regulating emotional responses ;

(h) engagement and support for families, including activities to maintain or facilitate positive relationships with family members, promote skills needed for success in the discharge living environment;

(i) coordination services with emphasis on discharge planning, including:

(1) collaboration with existing providers and community supports;

(2) referral and access to behavioral health services (including pharmacological evaluation and management) and community supports; and

(j) room and board.

(c) Regardless of type, each crisis residence program shall submit a staffing plan developed in accordance with Section 589.7 of this Part to the Office, in a form and format designated by such Office, at the time of issuance or renewal of the program's operating certificate and must demonstrate sufficient coverage by staff to meet the needs of program recipients.

(d) An operating certificate may be limited, suspended, invalidated or revoked by the Office of Mental Health in accordance with the provisions of Part 573 of this Title.

(e) Operating certificates shall remain the property of the Office of Mental Health, and invalidated or revoked operating certificates shall be returned to the Office of Mental Health.

(f) Each operating certificate will specify:

(1) the location of the crisis residence;

(2) the type of crisis residence program;

(3) the term of the operating certificate;

(4) any changes to be made in the operation of the facility or program in order to retain the operating certificate; and

(5) the recipient capacity of the crisis residence program.

(g) In order to receive and retain an operating certificate, a provider of services shall:

(1) submit an application on such forms and with such supporting documentation as shall be required by the Office of Mental Health;

(2) frame and display the operating certificate within the crisis residence program in a conspicuous place which is readily accessible to the public;

(3) cooperate with the Office of Mental Health during any review or inspection of the facility or program;

(4) make available to the Office of Mental Health upon request all documents, files, reports, recipient records, accounting records, or other materials required by this Part or requested by the Office of Mental Health in the course of visitation, audit and inspection;

(5) undertake changes in the operation of the facility or program as required by the operating certificate; and

(6) obtain prior approval of the Office of Mental Health to:

(i) change the physical location of the program or utilize additional physical locations;

(ii) initiate major changes in the program;

(iii) terminate the program or services in the program; and

(iv) change the powers or purpose set forth in the certificate of incorporation.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.6 Organization and administration

(a) The provider of service shall identify a governing body which shall have overall responsibility for the operation of the program. The governing body may delegate responsibility for the day-to-day management of the program to appropriate staff in accordance with the organizational plan approved by the Office of Mental Health. No individual shall serve as both member of the governing body and of the paid staff of the program without prior approval of the Office of Mental Health.

(b) A crisis residence may be housed in a building with other programs operated by the, however; it must be within spaces that are physically and programmatically separate.

(c) The governing body shall meet on a regular basis, in no event less often than quarterly, and shall maintain written minutes of all meetings as permanent record of the decisions made in relation to the operation of the program. The minutes shall be reviewed and approved by the governing body.

(d) The governing body shall approve a written plan or plans that, at a minimum, address the following aspects of the operation of each crisis residence program:

(1) the goals and objectives of the crisis residence program, including the admission and discharge criteria;

(2) the plan of organization that clearly indicates lines of responsibility;

(3) a written plan for services and staff composition which:

(i) includes the qualifications and duties of each staff position by title, and addresses all essential aspects of the operation of the crisis residence program, including clinical, administrative, supervision, fiscal, clerical, housekeeping, maintenance, dietetic, and recordkeeping and reporting functions; and

(ii) specifies all services available through the crisis residence program;

(4) the written quality assurance plan pursuant to section 589.10 of this Part; and

(5) the written utilization review plan pursuant to section 589.11 of this Part.

(e) The governing body shall approve written policies and procedures of the crisis residence program including but not limited to:

(1) admission and discharge policies and procedures;

(2) policies and procedures regarding the rules and regulations necessary for program participation;

(3) personnel policies and procedures. Such policies and procedures shall prohibit discrimination on the basis of race, color, creed, disability, national origin, sex, marital status, age, HIV status, military status, predisposing genetic characteristics, gender identification or sexual orientation and shall provide for a review of the qualifications of all clinical staff and verification of employment history, personal references and work record and determination of past convictions of a crime in New York State or any other jurisdiction;

(4) staff training and development policies and procedures. Such policies and procedures shall address orientation, ongoing training and staff development to ensure that the design and operation of the program is consistent with and appropriate to the ethnic and cultural background of the recipient population; and that staff are trained in how to provide appropriate Language Access for recipients and family members or guardians with limited English proficiency;

(5) medication policies and procedures. Such policies and procedures shall be consistent with applicable Federal and State laws and regulations;

(6) case record policies and procedures. Such policies and procedures shall ensure confidentiality of recipient records in accordance with section 33.13 of the Mental Hygiene Law, and shall ensure appropriate retention of case records;

(7) policies and procedures related to performing the services provided by the crisis residence program;

(8) policies and procedures describing a recipient grievance process which ensures the timely review and resolution of recipients' complaints and which provides a process allowing recipients to request review by the appropriate Office of Mental Health field office when resolution is not satisfactory; and

(9) for Children's Crisis Residence Programs, written policies and procedures shall also include:

(i) a staff supervision plan that identifies the minimum skills and competencies necessary for staff to supervise recipients in the program independent of direct supervision; including general child supervision practices and individual precautions designed to ensure a safe environment for all recipients;

(ii) visiting procedures for family members or guardians, including the ability to participate in planned clinical, supportive and/or recreational activities; and

(iii) provisions addressing the identification and mandatory reporting of child abuse or neglect, including, reporting procedures and obligations of persons required to report, provisions for taking a child into protective custody, mandatory reporting of deaths, immunity from liability, penalties for failure to report, and obligations for the provision of services and procedures necessary to safeguard the life or health of the child. Such policies and procedures shall address the requirements for the identification and reporting of abuse or neglect regarding recipients who are children, or who are the parents or guardians of children.

(f) The governing body shall review the written plan(s) and policies and procedures required pursuant to subdivisions (d) and (e) of this section at least annually and shall make appropriate amendments or revisions.

(g) The governing body shall delegate responsibility for the day-to-day management of the crisis residence program in accordance with the written plan of organization provided for in paragraph (e)(2) of this section.

(1) Onsite direction shall be delegated to an individual who shall be known as the director and who shall meet the qualifications specified in section 589.8(d) of this Part.

(2) The director shall be employed by the agency as a full-time employee.

(3) Overall administrative direction may be the responsibility of the director or may be delegated by the governing body to an individual who shall meet qualifications that are acceptable to the Office of Mental Health.

(h) The crisis residence program shall provide for the following:

(1) an annual written evaluation of the crisis residence program's attainment of its stated goals and objectives including any required changes in policies and procedures;

(2) in programs which are not State-or local government-operated, an annual audit of the financial condition and accounts of the crisis residence program must be performed by a certified public accountant who is not a member of the governing body or an employee of the crisis residence program or the provider of service. Government-operated programs shall comply with applicable laws concerning financial accounts and auditing requirements. The audit may be program specific or may be performed as part of an overall facility audit;

(3) emergency evacuation plans for the building in which the crisis residence program is located. Evacuation plans shall address emergencies resulting from fire as well as potential hazards in the geographic area in which the crisis residence program is located; and

(4) up-to-date copies of any regulations, guidelines, manuals or other information required by the Office of Mental Health.

(i) documentation of compliance with 14 NYCRR Part 550 regarding criminal background checks and NYS Social Services Law Section 424 regarding the child abuse and neglect registry.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.7 Written plan for services and staff composition

(a) Each crisis residence program shall develop and specify in a written plan for services and staff composition its goals and objectives and the manner in which it intends to achieve them. The written plan for services and staff composition shall be subject to approval by the Office of Mental Health.

(b) The written plan for services and staff composition shall address the comprehensive service needs of the recipients.

(c) The written plan for services and staff composition shall encompass the following written plans and rationales required under this part:

(1) services required to be available through the crisis residence program;

(2) service program and environment addressing the day-to-day activities of the recipients;

(3) staffing required to provide services and day-to-day management and monitoring of the crisis residence program; and

(4) for Children's Crisis Residence Programs only, a process to determine the eligibility of children referred for admission to the program, in accordance with the program's admission criteria, based on recommendations by professional staff of the agency acting within their scope of practice.

(d) The written plan for services and staff composition shall address the manner in which the staff will integrate the services available through the crisis residence program into an individual service plan designed to meet the needs of each recipient and include involvement of the family or other identified support as appropriate.

(e) The written plan for services and staff composition shall include provisions intended to assure continuity and integration of care within the mental health system and other systems of care for individuals served and their family, as appropriate. Such plan shall be supported by written agreements with other providers of service when executed. The plan shall be subject to approval by the Office of Mental Health and, at a minimum, shall address the following areas as relevant:

(1) emergency medical and psychiatric services;

(2) inpatient programs;

(3) outpatient programs;

(4) local social services;

(5) alcohol and substance abuse treatment and education programs;

(6) general health care providers;

(7) transportation;

(8) schools;

(9) community recreation;

(10) juvenile justice system; and

(11) vocational programs.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.8 Staffing

(a) A crisis residence program shall continuously employ an adequate number of staff and an appropriate staff composition to carry out its goals and objectives as well as to ensure the continuous provision of sufficient ongoing and emergency supervision. As a component of the written plan for services and staff composition, the crisis residence program shall submit a staffing plan in accordance with Section 589.5(c) of this Part, which includes the qualifications and duties of each staff position, by title. Such plan shall include a written staffing rationale which justifies the staff to be used, the composition of staff and the plan for appropriate supervision and training. This staffing plan shall be based on the population to be served and the services to be provided.

(b) All clinical staff must have at least a high-school diploma or its equivalent.

(c) Supervisory staff: Crisis Residence programs shall have a continuous provision of sufficient ongoing and emergency supervision. Supervisory staff of crisis residence programs shall be available to assist on at least an on-call basis when not on site. Qualified mental health staff may be considered supervisory staff as set forth in the staffing plan.

(16) Other professional disciplines may be included as professional staff provided that the discipline is approved as part of the staffing plan by the Office of Mental Health. The discipline shall be from a field related to the treatment of mental illness. The individual must be licensed in such

(d) All staff shall have qualifications appropriate to assigned responsibilities as set forth in the staffing plan and shall practice within the scope of their professional discipline and/or assigned responsibility. All staff shall submit documentation of their training and experience to the crisis residence program. Such documentation shall be verified and retained on file by the crisis residence program.

(e) Students or trainees may qualify as clinical staff under the following conditions:

(1) the students and trainees are actively participating in a program leading to attainment of a recognized degree or certificate in a field related to mental health at an institution chartered or approved by the New York State Education Department. Limited-permit physicians are considered students or trainees;

(2) the students or trainees are supervised and trained by professional staff meeting the qualifications specified in this section, and limited-permit physicians are supervised by physicians;

(3) the students or trainees use titles that clearly indicate their status; and

(4) written policies and procedures pertaining to the integration of students and trainees within the overall operation of the crisis residence program shall receive approval by the Office of Mental Health.

(f) All pre-employment background checks required pursuant to Section 31.35 of the Mental Hygiene Law, Section 495 of the Social Services Law, and Section 424-a of the Social Service Law, shall be conducted in compliance with such laws.

(g) Para-professional staff may not work in more than one program during a shift.

(h) Additional requirements for Children's Crisis Residence Programs:

(1) A children's crisis residence program with six beds or less shall have at least two full-time equivalent para-professional staff on duty during "peak times." For purposes of this part, "peak times" include early mornings, after school, early evenings, weekends and holidays. For eight-bed programs, at least three full time equivalent para-professional staff shall be assigned during "peak times" if more than six beds are occupied.

(2) A minimum of two para-professional staff must be on-site for overnight coverage. At any given time during this period, at least one staff must be awake and on duty.

(3) Adequate volume of registered professional nursing staff on duty to ensure the continuous provision of treatment services in accordance with their scope of practice.

(4) Adequate volume of professional staff and qualified mental health staff, in addition to registered professional nursing staff, to ensure the continuous provision of the program's required treatment services in accordance with their scope of practice.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.9 Individual Service Plan and Case Record

(a) Individual service plans for Intensive Crisis Residence Programs and Residential Crisis Support Programs

(1) An individual service plan shall be developed and implemented with each recipient by the staff of the crisis residence within 24 hours of admission.

(2) The individual service plan shall be based on a comprehensive assessment of each recipient.

(i) For an Intensive Crisis Residence program, the assessment shall engage each recipient as an active partner in developing, reviewing and modifying a service plan that supports their progress toward recovery. The assessment shall include but not be limited to the recipient's personal preferences and desired life roles, physical, medical, emotional, social, residential, recreational and, when appropriate, vocational and nutritional needs. The assessment shall also include a risk assessment, and shall identify any need for medication management. If appropriate, this information, with the recipient's consent, may be obtained from the recipient's most recent mental health service provider(s) and coordinator.

(ii) For a Residential Crisis Support program, the assessment shall engage each recipient as an active partner in developing, reviewing and modifying a service plan that supports their progress towards recovery. The assessment shall include, but not limited to emotional, mental, social, residential, recreational and, when appropriate, vocational and nutritional needs. If appropriate, this information, with the individual's consent, may be obtained from the recipient's most recent mental health service provider(s).

(iii) Consideration of each recipient's needs shall include a determination of the type and extent of additional clinical examinations, tests and evaluations necessary for a complete assessment, if needed.

(3) The individual service plan shall address the needs of the recipient.

(i) The individual service plan shall identify all service needs of the recipient whether or not the services are provided directly by the crisis residence program.

(ii) The individual service plan shall address the manner in which the recipient's identified supports, which may include family, will be involved in the service planning and implementation.

(4) The individual service plan must be signed by a qualified mental health staff person and the recipient.

(5) The individual service plan must be developed in collaboration with the recipient and any collateral persons the recipient chooses to involve.

(6) The individual service plan must include discharge planning.

(b) Individual service plans for Children's Crisis Residence Programs

(1) An individual service plan is required for each recipient.

(2) The individual service plan shall be based on a comprehensive intake assessment of each recipient.

(3) Within 24 hours of admission of a child to a children's crisis residence program, an intake assessment must be completed by a qualified mental health staff person (QMHP) within their scope of practice and at a minimum a preliminary individual service plan must be developed.

(i) The intake assessment must include, at a minimum:

(a) an assessment of risk;

(b) a description of the current symptoms and/or behaviors which demonstrate eligibility for admission;

(d) a description of the child's current needs and strengths; and

(e) a description of the skills needed to transition to the home or community.

(ii) The preliminary individual service plan must include, at a minimum:

(a) a description of the immediate need(s) to be addressed,

(b) the initial goal(s), service(s), intervention(s) and crisis plan to address the need(s) during the initial period after admission.

(4) Within 72 hours of admission the individual service plan must be completed, with the participation, as appropriate, of the child, the child's parent/guardian or other identified collaterals. Parent/guardian or other collaterals participating in the development of the plan must be specifically identified in the plan. If the QMHP developing the plan does not possess a license, the plan must be approved and signed by professional staff.

(5) The completion of the Individual Service Plan must include, at a minimum, the following additional components:

(i) the treatment goal(s) and objectives; the services, interventions, projected time periods to accomplish the goal(s); the parent/guardian, family members or other identified collaterals participating in treatment and discharge planning; the criteria for discharge and a description of the services and supports needed at the time of transition to the home or community; signatures of the child, participating family or collaterals indicating their agreement. If the child, family or identified collateral(s) is unable to participate, the reason for non-participation must be documented.

(ii) If applicable, the plan for provision of additional service(s) outside of the crisis residence program to further support and prepare the child for discharge, while in the program, must also be included in the individual service plan.

(iii) The development of the crisis plan must include the child and family as active participants, as appropriate. With the child's and/or parent/guardian's consent, the crisis plan may be shared with identified collaterals involved in the child's treatment or support.

(6) The individual service plan must be reviewed as needed and include participation of staff involved in the provision of services to the to the child and/or, if appropriate, the child's family or other collaterals. The service plan must be revised if there is a change to the child's goals or plan for discharge.

(1) There shall be a complete case record maintained at one location or electronically for each recipient.

(2) Information in crisis residence program case records that is subject to the confidentiality protections of Mental Hygiene Law section 33.13 may be shared between facilities, agencies and programs responsible for the provision of services pursuant to an approved local or unified services plan (including programs that receive funding from the Office of Mental Health disbursed via a State aid letter); such Office and any of the psychiatric centers and programs that it operates; and facilities, agencies, and programs that are not licensed by such Office and are not participants in an approved local or unified services plan, but are responsible for the provision of services to any recipient pursuant to a written agreement with the Office as a party, provided, however, if a case record contains HIV or AIDS information that is protected by Public Health Law article 27-F, or information provided by a federally-funded alcoholism/substance abuse provider that is protected under 42 CFR part 2, such information shall only be redisclosed as permitted by such law or regulation.

(3) Each case record shall include:

(i) identifying information about the recipient and the recipient's identified supports;

(ii) admission information including source of referral, date of admission, rationale for admission, the date service commenced, presenting problem and initial treatment needs of the recipient;

(iii) summary of psychiatric, medical, emotional, social and residential needs. Special consideration shall be given to the role of the recipient's identified supports in each area of assessment;

(iv) summary of reports of all mental and physical diagnostic examinations and assessments, including findings and conclusions, if available;

(v) summary of reports of all special studies performed, including but not limited to X-rays, clinical laboratory tests, psychological tests, and electroencephalograms, if available;

(vi) the individual service plan;

(vii) daily progress notes, related to the goals and objectives of the service plan, including the signature of the staff member who provided the service;

(viii) a discharge summary; and

(ix) documentation that, upon admission, all recipients were educated in self-preservation procedures, regarding emergency evacuation and fire safety procedures.

(4) Records must be retained for a minimum period of six years from the date of the last service provided to a recipient or, in the case of a minor, for at least six years after the last date of service or three years after he/she reaches majority, whichever time period is longer.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.10 Quality assurance

(a) Each crisis residence program shall have an organized quality assurance program designed to enhance recipient care through the ongoing objective assessment of important aspects of recipient care and the correction of identified problems. The quality assurance program shall provide for the following:

(1) identification of problems or concerns related to the care of recipients including, but not limited to recipient engagement in crisis residential services;

(2) objective assessment of the cause and scope of the problems or concerns, including the determination of priorities for both investigating and resolving problems and concerns. Priorities shall be related to the degree of adverse impact on the care provided recipients that can be expected if the problems or concerns remain unresolved;

(3) recommendations related to implementation of decisions or actions that are designed to eliminate, insofar as possible, identified problems; and

(4) monitoring to assess whether or not the desired result has been achieved and sustained.

(b) Each crisis residence program shall prepare a written quality assurance plan designed to ensure that there is an ongoing quality assurance program that includes effective mechanisms for reviewing and evaluating recipient care and provides for appropriate response to findings. This quality assurance plan shall be subject to approval by the Office of Mental Health. The quality assurance plan may be program-specific or part of an overall facility quality assurance plan. The written quality assurance plan shall address at a minimum:

(1) the individual or group with the overall responsibility to administer or coordinate the quality assurance program;

(2) the individuals or organizational entities to whom responsibility will be delegated for specific activities or mechanisms;

(3) the activities or mechanisms for reviewing and evaluating recipient care;

(4) the activities or mechanisms for assuring the accountability of the clinical staff for the care they provide;

(5) the individuals or organizational entities to whom responsibility will be delegated for responding to findings or implementing corrective actions designed to eliminate, insofar as possible, identified problems; and

(6) the activities or mechanisms for monitoring whether or not the corrective actions have been implemented, and whether or not the desired result has been achieved and sustained.

(7) Crisis residence programs shall develop and implement an incident management program in accordance with 14 NYCRR Part 524.

(c) Crisis residence programs shall have procedures for internal monitoring of program performance. Performance should be monitored against the criteria stated in the program's description . The results of this internal monitoring shall be used to identify problems in client care and opportunities to improve care and shall be regularly reviewed and acted on by the governing body.

(d) The Office of Mental Health shall have responsibility for monitoring the quality of crisis residential programs. Upon a determination that a provider of service is in violation of this Part or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, standard, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate or impose fines in accordance with Mental Hygiene Law, section 31.16 and Parts 53 and 503 of this Title.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.11 Utilization Review

(a) The crisis residence program shall have an organized utilization review process designed to monitor the appropriateness of admission and continued stay and to identify the over-utilization or under-utilization of services.

(b) The crisis residence program shall prepare a written utilization review plan designed to ensure that there will be an ongoing utilization review program. The utilization review plan may be program-specific or part of an overall facility utilization review plan. This utilization review plan shall be subject to approval by the Office of Mental Health.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.12 Rights of recipients

(a) Recipients shall have the rights enumerated in Section 527.5 of this Chapter, and the provider of service shall ensure recipients receive notice of such rights in compliance with such section.

(b) For adult crisis residences, recipients shall have the right to control their own schedules and activities.

(c) Each recipient, family, or identified support, shall be apprised of a grievance process which ensures the timely review and resolution of complaints.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.13 Premises

(a) The crisis residence shall be safe and suitable for the comfort and care of the recipients therein. The residence shall be maintained in a good state of repair and sanitation.

(b) Safety requirements.

The crisis residence shall meet the following requirements:

(1) A sufficient number of fire extinguishers, approved by the Underwriters Laboratories, or other nationally recognized testing laboratory in the United States, shall be installed in accessible places on each floor and in high-hazard areas. Fire extinguishers shall be tested and recharged in accordance with manufacturers' recommendations.

(2) Employees shall be trained in the use of firefighting equipment, and in the means of rapidly evacuating the building. Fire exit drills shall be held at least once per month and at varied times during the 24 hours. A written record of each drill shall be kept on file for a period of one year.

(3) All of the following fire hazards are prohibited:

(i) the use of kerosene for cooking or lighting;

(ii) rubber tubing used as connections for gas burners;

(iii) the accumulation of combustible material in attics, basements or other parts of the residence; and

(iv) unsafe storage of paints, varnishes, oils, and other combustible liquids.

(4) Each crisis residence shall have a smoke-detection system which meets the requirements of the most recent recognized edition of the National Fire Protection Association (NFPA) 101 Life Safety Code, applicable to noncoded systems, and the following:

(i) A smoke-detection unit shall be located in each stairway at each floor, in each bedroom, in each 1,000 square feet of unoccupied attic and basement space, in each high hazard area, and in each 40 feet or part thereof of corridor length.

(ii) Location of smoke-detection units shall be subject to Office of Mental Health approval.

(iii) The smoke-detection system or each independently operating unit shall be tested at least once each three-month period, and batteries in battery-operated units shall be replaced as necessary.

(iv) A complete system or individual units may be required depending on the construction, layout, occupancy and/or other factors associated with the building. Prior to the opening of a crisis residence, and the issuance of an operating certificate, a fire safety plan must be submitted to and approved by the Office of Mental Health.

(5) Each crisis residence shall provide carbon monoxide detectors, in accordance with the most recent edition of the Residential Code of New York State and the Fire Code of New York State, as applicable.

(i) Carbon monoxide detectors shall be installed in locations as required by applicable law and according to manufacturer's directions and specifications.

(ii) Carbon monoxide detectors shall be battery operated, plug-in type or hardwired, in accordance with applicable law.

(iii) Inspections and tests of carbon monoxide detectors shall be made in accordance with manufacturer's directions and specifications. Written documentation of such testing will be maintained for review.

(6) Residences must possess a valid certificate of occupancy or other documentation, which, has been determined by the Office of Mental Health to be the equivalent of a certificate of occupancy.

(7) Electric space heaters are allowed only with the explicit approval of the Office of Mental Health and with a description of the device in detail, including its safety features, potential hazards and proposed procedures for maintenance and operation.

(1) Single bedrooms shall be at least 90 square feet (exclusive of closets) and a multiple bedroom shall provide at least 75 square feet per recipient.

(i) No more than one adult shall occupy a bedroom.

(ii) No more than two children shall share a bedroom.

(iii) No bedroom shall be located below grade.

(iv) Up to 15 percent of minimum square footage may be waived for cause in bedrooms housing one recipient. Consideration will also be given to the amount of square footage per recipient in living, dining and recreational areas. Requests for such waivers must be outlined in the fire safety plan submitted to the Office of Mental Health.

(v) All bedrooms must receive natural light from an aggregate window area equal to at least 10 percent of the floor area of the bedroom and natural ventilation from ventilating openings having free openable area of at least five percent of the bedroom floor area. This requirement may be waived for cause.

(2) There shall be a minimum of one lavatory and one tub or shower for each five adult recipients or part thereof.

(3) There shall be a minimum of one lavatory for each five child recipients and a minimum of one tub or shower for each eight child recipients or part thereof.

(4) In addition to bedroom space, at least 55 square feet of space per recipient shall be provided for living, dining and recreational activities, apportioned within at least two distinct areas in each crisis residence unit.

(i) Dining rooms shall be equipped to provide for small group seating during meals.

(ii) Living rooms and/or recreation areas shall provide for small group socialization and recreation.

(d) Equipment shall include:

(1) suitable, comfortable, single beds and an adequate supply of clean linen. Cots must not be used. High hospital-type beds shall not be used except for physically handicapped persons requiring them; and

(2) a chair and storage facility for personal articles for each recipient.

(e) Crisis residences serving only persons capable of self-preservation operated in buildings without other occupancy shall follow requirements of National Fire Protection Association 101.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.14 Statistical records and reports

(a) Such statistical information shall be prepared and maintained as may be necessary for the effective operation of the crisis residence program and as may be required by the Office of Mental Health.

(b) Statistical information shall be reported to the Office of Mental Health in a manner and within time limits specified by the Office of Mental Health.

(c) Statistical reporting shall be the responsibility of an individual whose name and title shall be made known to the Office of Mental Health.

(d) Summaries of statistical information shall be reviewed at least annually as part of the annual evaluation process.

History

Adopted New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 589.15 Determination of Self-Preservation

(a) The evacuation capacity of recipients is a function of both the ability of the recipients to evacuate and the assistance provided by staff. Determination of satisfactory ability to evacuate should be made prior to admission to a residential program. Such a determination may be reached by review of the applicant's history and a face-to-face interview which shows a capacity to evacuate equivalent to that of the general public. When uncertainty exists, a time drill may be used for a more objective measurement.

(b) Subsequent to admission; for a crisis residence, timed drills should be used to regularly evaluate the level of evacuation capability of program recipients. Translation of drill times to evacuation capability may be determined as:

(1) three minutes or less, prompt;

(2) over three minutes but not in excess of 13 minutes, slow.

(3) Evacuation capability is based on the time of day or night when evacuation of the facility would be the most difficult (i.e., sleeping residents or fewer staff present). Recipients needing assistance in evacuating should be assisted by staff to the extent that assistance would be available at the time of day or night in an actual emergency.

(c) Fire exit drills shall be conducted in a crisis residence at least monthly at varying times of the day and night. Some drills may be announced in advance to the recipients. The drills shall involve the actual evacuation of all residents to an assembly point as specified in the emergency plan and shall provide residents with experience in exiting through all exits. Actual exiting from windows shall not be necessary to meet the requirements of this section. Opening the window and signaling for help shall be an acceptable alternative. Records should indicate the time to evacuate, date and times of day, location of simulated fire origin, the escape paths used and comments relating to residents who did not evacuate within the required time.

(d) Recipients and prospective individuals shall only reside in or be admitted to a type of residential program appropriate to the individual's evacuation capability.

(1) If a recipient or prospective individual is clearly capable of prompt evacuation, that individual may be admitted to or remain in any residential program of a type appropriate to their functional level.

(2) If a recipient or prospective individual fails to demonstrate a capability for prompt evacuation during a fire drill, the matter should be completely documented in the fire drill log and in the recipient's record. Immediate steps should be taken to relocate the recipient to a location within the residence which will allow for easier egress for such time as is necessary until another fire drill can be conducted (no more than 14 days) and the recipient's behavior observed again.

(3) If any recipient or prospective individual would be excluded from a residential program because of inability to evacuate within the time limits above, an evaluation shall be conducted as described in the most current recognized edition of the National Fire Protection Association 101A, Alternative Approaches to Life Safety. Said codes are published by the National Fire Protection Association, One Batterymarch Park, Quincy, MA 02269 and are available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231 and the Office of Mental Health, Bureau of Inspection and Certification, 44 Holland Avenue, Albany, NY 12229. If the resultant E-score yields an evacuation difficulty level of prompt, the applicant or resident shall not be excluded for failure to evacuate within the required time limit. If the resultant E-score yields an evacuation difficulty level of slow, the applicant or resident shall not be excluded solely for failure to evacuate within the required time frame from a facility that is constructed to meet the slow evacuator standards of the current recognized edition of the Life Safety Code.

History

Adopted New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

Part 590 Operation Of Comprehensive Psychiatric Emergency Programs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.1 Background and intent

(a) The purpose of comprehensive psychiatric emergency programs for those individuals with a known or suspected mental illness is to provide emergency observation, evaluation, care, and treatment in a safe and comfortable environment.

(b) The purpose of this Part is to establish standards for a comprehensive psychiatric emergency program which provides a full range of psychiatric emergency services within a defined geographic area. Comprehensive psychiatric emergency program services will include crisis intervention services within an emergency room setting, crisis outreach services, beds for extended observation of individuals, and triage and referral services.

(c) The purpose of this Part is to describe requirements for the establishment and operation of a comprehensive psychiatric emergency program; establish requirements for admission and discharge; and specify requirements for staffing, services, treatment planning, recordkeeping and appropriate community linkages.

(d) It is the intention of this Part to provide for a person-centered process, which, to the maximum extent possible, an individual participates in the planning of their services and makes informed choices about the services and supports that they receive. Compliance with this Part shall ensure that services are collaborative in nature and based on the individual's interests, preferences, strengths, and needs, are designed to empower the individual by fostering skills to achieve desired personal relationships, community participation, dignity, and respect and that the individual is satisfied with activities, supports, and services.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.2 Legal base

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health the powers and responsibility to adopt regulations that are necessary and proper to implement matters under their jurisdiction and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for mentally ill individuals pursuant to an operating certificate.

(b) Section 9.40 of the Mental Hygiene Law provides for emergency psychiatric admission to a comprehensive psychiatric emergency program.

(c) In accordance with Mental Hygiene Law Sec. 9.13 voluntary patients may seek admission to a comprehensive psychiatric emergency program. Voluntary treatment means that a person has a mental illness for which care and treatment as a patient in a comprehensive psychiatric emergency program is essential to such person's welfare and such person understands and consents to the need for such care and treatment.

(d) Section 31.02 of the Mental Hygiene Law prohibits the operation of programs providing services for persons with mental illness unless an operating certificate has been obtained from the appropriate commissioner of an office within the Department of Mental Hygiene.

(e) The Mental Hygiene Law, sections 31.05, 31.07, 31.09, 31.13, 31.19 and 31.27 further authorize the commissioner or his or her representative to examine and inspect such programs to determine their suitability and proper operation. Sections 31.16 and 31.17 authorize the commissioner to suspend, revoke or limit any operating certificate.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.3 Applicability

This Part applies to any general hospital which is operated by State or local governments or voluntary agencies, is authorized to receive and retain individuals pursuant to section 9.39 of the Mental Hygiene Law and operates or proposes to operate a comprehensive psychiatric emergency program.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.5 Certification

(a) Any general hospital that intends to operate a comprehensive psychiatric emergency program must be issued an operating certificate by the Office of Mental Health prior to the operation of the program.

(b) An operating certificate may be limited, suspended, or revoked by the Office of Mental Health in accordance with the provisions of section 31.16 of the Mental Hygiene Law and Part 573 of this Title. Operating certificates shall remain the property of the Office of Mental Health, and revoked operating certificates shall be returned to the Office of Mental Health.

(1) submit an application on such forms and with supporting documentation as shall be required by the Office of Mental Health. Such application shall include an emergency services plan which complies with section 590.7 of this Part and which, as approved, shall be the program and community plan for the licensed comprehensive psychiatric emergency program and an integral part of the certificate;

(2) frame and display the operating certificate within the comprehensive psychiatric emergency program in a conspicuous place which is readily accessible to the public;

(3) cooperate with the Office of Mental Health during any review, evaluation or inspection of the facility or program;

(4) make available to the Office of Mental Health upon request all documents, files, reports, patient records, accounting records or other materials required by this Part or requested by the Office of Mental Health in the course of visitation, audit or inspection;

(5) undertake changes in the operation of the hospital or program as required by the operating certificate; and

(6) obtain prior approval of the Office of Mental Health to:

(i) change the physical location of the program or utilize additional physical locations;

(ii) initiate major changes in the services provided by the program;

(iii) terminate the program or services in the program; and

(iv) change the powers or purpose set forth in the certificate of incorporation.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.6 Organization and administration

(a) The governing body of the hospital shall be responsible for the overall operation and management of the comprehensive psychiatric emergency program. The governing body may delegate responsibility for the day-to-day management of the program to appropriate staff pursuant to an organizational plan approved by the Office of Mental Health. No individual shall serve as both member of the governing body and of the paid staff of the comprehensive psychiatric emergency program without prior approval of the Office of Mental Health.

(b) The hospital shall assure that the comprehensive psychiatric emergency program has space, program, staff, policies and procedures that are sufficient to meet the requirements of this Part and are separately identifiable from any other programs which may be operated by the providers.

(c) The governing body shall comply with all requirements set forth in 10 NYCRR Part 405 as well as requirements established by appropriate local, State and Federal standard-setting bodies. In addition, the governing body shall be responsible for the following duties:

(1) to develop an organizational plan which indicates lines of accountability and the qualifications required for staff positions. Such plan may include the delegation of the responsibility for the day-to-day management of the program to a program director who shall be a member of the professional staff employed by the comprehensive psychiatric emergency program. The program director shall report to the director of the host hospital or to the Director of Psychiatry;

(2) ensure efforts to reduce disparities in access, quality of care and treatment outcomes for underserved/unserved marginalized populations, including but not limited to: people of color, members of the LBGTQ community, older adults, Veterans, individuals who are deaf & hard of hearing, individuals who are Limited English Proficient, immigrants, and individuals re-entering communities from jails and prisons. Such policies and procedures shall include, but are not limited to the following:

(i) written personnel policies which shall prohibit discrimination on the basis of race or ethnicity, religion, color, creed, disability, gender identity, sexual orientation, sex, marital status, age or national origin, as well as, written policies on affirmative action which are consistent with the affirmative action and equal employment opportunity obligations imposed by title VII of the Civil Rights Act, Federal Executive Order 11246, the Rehabilitation Act of 1973, section 504, as amended, and the Vietnam Era Veteran's Readjustment Act;

(3) to develop, approve, periodically review and revise as appropriate all programmatic and administrative policies and procedures. Such policies and procedures shall include, but are not limited to the following:

(i) written policies and procedures governing patient records that ensure confidentiality consistent with the Mental Hygiene Law, sections 33.13, 33.14 and 33.16, 45 C.F.R. parts 160 and 164 and which provide for appropriate retention of such records pursuant to section 590.12 of this Part; and

(ii) written policies that ensure the protection of patients' rights. At a minimum these policies shall establish and describe a patient grievance procedure. The provider shall post a statement of patients' rights in a conspicuous location easily accessible to the public pursuant to section 590.15 of this Part. This statement shall be provided in the individual's preferred language, and be accessible to the blind and visually impaired.

(4) To make an effort that the comprehensive psychiatric emergency program's staffing matches the demographic profile of the persons served, the program regularly uses data to set workforce recruitment targets. Efforts to recruit a diverse workforce shall include all levels of the organization's workforce, including management.

(d) Comprehensive psychiatric emergency programs review demographic data for the program's catchment area to determine the cultural and linguistic needs of the population. Staff is trained to be aware and respond appropriately to the cultural and linguistic needs of the catchment area.

(e) Comprehensive psychiatric emergency programs review available demographic data to identify disparities of access to treatment and shall implement policy and procedures to address such disparities.

(f) Comprehensive psychiatric emergency programs shall ensure provision of language assistance services to individuals who are Limited English Proficient and/or have other communication needs (e.g., deaf or hard of hearing) at no cost to them to facilitate timely access to all health care and services. Language access services will be made available in such a way that assessment or treatment activities will not be delayed.

(1) The comprehensive psychiatric emergency program shall make all necessary documents available in the individual's preferred language (e.g. releases). The program shall inform all individuals of their right to receive language assistance services clearly and in their preferred language, verbally and in writing.

(2) The comprehensive psychiatric emergency program provides easy-to-understand print and multimedia materials and signage in the languages commonly used by the populations in the service area, with a focus on the varied reading levels among the service user population.

(3) Efforts are made to provide the individuals identified as collaterals with language assistance services translated into their preferred language, verbally and in writing.

(4) Efforts are made to employ staff that are proficient in the most prevalent languages spoken by services users.

(5) Ensures the competence of individuals providing language assistance, recognizing that the use of untrained individuals and/or minors as interpreters shall be avoided.

(g) Incidents

(1) The hospital shall ensure the timely reporting, investigation, review, monitoring and documentation of incidents pursuant to the Mental Hygiene Law and Part 524 of this Title. Additionally, such records and any related information shall be made available to the Department of Health, at their request.

(i) The comprehensive psychiatric emergency program shall utilize New York Incident Management Reporting System reports or other available incident/data analysis program reports to assist in risk management activities and compile and analyze incident data for the purpose of identifying and addressing possible patterns and trends to improve service delivery.

(2) Incident Training

(i) All new staff shall receive training which must include at a minimum, the definition of incidents, reporting procedures, an overview of the review process, and the role of risk management.

(ii) Refresher incident reporting training shall be conducted at least annually for all staff and evidence of such training must be recorded in the staff personnel file.

(3) The Hospital's incident review committee shall review incidents, make recommendations and ensure implementation of action plans with the comprehensive psychiatric emergency program's administrator.

(h) The hospital shall ensure that no otherwise appropriate individual is denied access to services solely on the basis of multiple diagnoses or a diagnosis of HIV infection, other chronic medical comorbidity, history of suicide attempt, history of violence, criminal and juvenile justice system involvement, personality disorder, substance use disorder, or intellectual or developmental disability.

(i) The hospital shall participate with the local governmental unit in local planning processes pursuant to sections 41.05 and 41.16 of the Mental Hygiene Law. At a minimum, such participation shall include:

(1) provision of budgeting and planning data as requested by the local governmental unit;

(2) identification of the population being served by the program;

(3) identification of the geographic area being served by the program; and

(4) description of the program's relationship to other providers of service, including but not limited to a description of all written agreements entered into pursuant to this Part.

(j) In programs which are not operated by State or local government, there shall be an annual audit, pursuant to a format prescribed by the Office of Mental Health, of the financial condition and accounts of the program performed by a certified public accountant who is not a member of the governing body or an employee of the program. Documents and fiscal information provided by the certified public accountant shall be relied upon by the Office of Mental Health in determining whether to issue, modify or renew the program's license and any associated contracts. Government-operated programs shall comply with applicable laws concerning financial accounts and auditing requirements. The audit may be program specific or may be performed as a part of any overall hospital audit.

(k) The hospital shall ensure the posting of notices of recipients' rights pursuant to section 527.5 of this Title.

(l) The comprehensive psychiatric emergency center shall ensure the posting of notices displaying the availability of on-site peer counseling/self-help services and the address and telephone number of local off-site peer counseling/self help services.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.7 Emergency service plan

(a) Each comprehensive emergency service program must submit an emergency services plan which shall be approved by the Commissioner of Mental Health prior to the issuance of an operating certificate.

(b) The emergency services plan shall include:

(1) a description of the program's catchment area;

(2) a description of the program's psychiatric emergency services, including crisis intervention services, crisis outreach services, extended observation beds, and triage and referral services, whether provided directly or through written agreement with other providers of services;

(3) written agreements or affiliations with the host hospital and, if appropriate, other hospitals, as defined in section 1.03 of the Mental Hygiene Law, to receive and admit persons who require inpatient psychiatric services;

(4) written agreements or affiliations with the hospital and as appropriate with other general hospitals to receive and admit persons who have been referred by the comprehensive psychiatric emergency programs and who require medical or surgical care which cannot be provided by the comprehensive psychiatric emergency program;

(5) a description of the program's linkages with mental health, substance abuse, alcohol, intellectual and developmental disabilities, health homes, social services, peer counseling and self help services, State and local police agencies, emergency medical services, and ambulance services or other transportation agencies;

(6) written discharge criteria and guidelines for discharge planning for persons in need of post emergency treatment or services in accordance with the requirements set forth in section 590.8 of this Part;

(7) a statement indicating that the program has been included in an approved local or unified service plan pursuant to article 41 of the Mental Hygiene Law for each local government located within the program's catchment area;

(8) the qualifications and duties of each staff position by title. Proposed staffing shall take into account the population to be served and the services provided, and shall include, at minimum, an adequate number of psychiatrists, registered nurses, licensed master and/or licensed clinical social workers, and security personnel;

(9) the rationale and justification for the specific number of extended observation beds which are being requested pursuant to section 590.9(e) of this Part. Hospitals are prohibited from operating extended observation beds above the approved number of beds which appear on the operating certificate of the program. The total number extended observation beds must be approved by the office; and

(10) any other information or agreements required by the commissioner.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.8 Admission and discharge procedures

(a) The program of services shall be provided through a person-centered process with shared decision making.

(b) The program of services shall be informed by the understanding that implicit bias may affect the assessment, diagnosis, treatment, and discharge planning of Black, Indigenous, People of Color (BIPOC) and other marginalized individuals.

(c) Each comprehensive psychiatric emergency program shall maintain admission and discharge criteria which are consistent with its goals and objectives, and which are subject to the approval of the Office of Mental Health. Each admission shall be conducted in accordance with the provisions of section 9.40 of the Mental Hygiene Law and on the forms prescribed therefor.

(d) Admission and retention of individuals.

(1) Any person receiving a triage and referral visit must be examined by a staff physician or psychiatric nurse practitioner as soon as practicable and in any event within six hours after being received into the emergency room.

(2) Any person receiving a full emergency visit must be examined by a staff physician as soon as practicable and in any event within six hours after being received into the emergency room.

(3) The director of the comprehensive psychiatric emergency program may, in accordance with section 9.40 of the Mental Hygiene Law, involuntarily receive and retain in an extended observation bed any person alleged to have a mental illness which is likely to result in serious harm to the person or others and for whom immediate observation, care and treatment in the comprehensive psychiatric emergency program is appropriate. Retention in an extended observation bed shall not exceed 72 hours, which shall be calculated from the time such person is initially received into the emergency room of the comprehensive psychiatric emergency program.

(4) No person may be involuntarily retained in a comprehensive psychiatric emergency program for more than 24 hours unless the person is admitted to an extended observation bed in accordance with section 9.40 of the Mental Hygiene Law.

(5) Any person with a need of medical or surgical care or treatment which cannot be provided in the comprehensive psychiatric emergency program, shall not remain in the comprehensive psychiatric emergency program for a period exceeding eight hours. Within eight hours such person shall be accepted by the host hospital or a hospital with an affiliation agreement pursuant to section 590.7(b)(3) of this Part for appropriate observation or treatment in accordance with applicable regulations of the Department of Health (10 NYCRR section 405.19).

(e) Information gathering for comprehensive and effective care.

(1) The program shall access the Psychiatric Services and Clinical Knowledge Enhancement System (PSYCKES) or other available electronic health records or database(s) to identify the individual's treatment providers and prior medication use and/or treatment engagement history.

(2) The program shall document efforts to identify and contact with the individual's consent, the individual's treatment team and other relevant providers (e.g., housing providers, care coordination, managed care organizations), and collaterals. In accordance with HIPAA and section 33.13 of the Mental Hygiene Law, the program shall attempt to obtain the authorization of the individual or someone authorized to make health care decisions on the individual's behalf to access, use and disclose personal health information from collaterals or other data sources as outlined in this subdivision. If the authorization of the individual cannot practicably be obtained due to incapacity or emergency circumstance, program staff may, in the exercise of professional judgment, determine whether the access, use, or disclosure is necessary to prevent imminent, serious harm to the individual. If so, only that personal health information that is necessary to protect the individual from the anticipated harm or which is in the best interest of the individual may be accessed, used, or disclosed. The reasons for the access, use, or disclosure must be appropriately documented in the clinical record.

(3) The program shall attempt to obtain collateral information on all individuals unless the presentation is due to a non-emergent reason, including but not limited to an asymptomatic individual presenting for a medication refill. When contacting collaterals staff shall assess whether the source of collateral information is able to provide sufficient high-quality information to determine risk, symptomatology and functioning in the community, treatment history, engagement in treatment, and ongoing stressors. If the source of collateral information is not able to provide sufficient high-quality information, attempts shall be made to identify and contact additional sources of collateral information.

(4) The program shall access the Psychiatric Services and Clinical Knowledge Enhancement System (PSYCKES) or other available electronic health records or database(s) to identify the individual's treatment providers and prior medication use and/or treatment engagement history with consent as required. In the event of incapacity or emergency circumstance, staff may temporarily access a PSYCKES clinical profile, for the limited purposes authorized by this section and in accordance with PSYCKES Policies and Procedures.

(5) The program shall access all other available information network databases to review relevant information on the individual with appropriate consent as may be required and in accordance with the database policy or as authorized by other policy, law or regulation.

(6) A practitioner or designee, as defined by article 33 of the Public Health Law, from the program shall review the I-STOP and PMP registry to obtain the controlled substance prescription history of each admitted individual.

(7) The program shall check PSYCKES to see if the individual has a psychiatric advance directive (PAD), wellness plan, or preferred contacts. The program shall obtain appropriate consent as required to access the full view of the PAD, wellness plan, or preferred contacts. In the event of incapacity or emergency circumstance, staff may temporarily access a PSYCKES clinical profile, for the limited purposes authorized by this section and in accordance with PSYCKES Policies and Procedures. If the individual does not have a PAD, the program shall provide a copy and explanation of the PAD. If the individual chooses to complete a PAD, it shall be placed in their chart.

(f) Screening and assessment

(1) All individuals must be screened for suicide risk using a validated instrument. Positive screens must be followed by a suicide risk assessment by a licensed professional trained in assessing suicide risk.

(2) Each comprehensive psychiatric emergency program (CPEP) must have policies regarding violence risk and screening. All individuals must be screened, and the CPEP policy must describe a process for subsequent assessment and intervention in the case of a positive screen. As part of the screening, all individuals must be asked about access to firearms or other weapons.

(3) All individuals over 12 years old must be screened for substance use using a validated instrument. Positive screens shall be followed by an assessment for high risk substance use and substance use disorder by a licensed professional or CASAC working within their scope of practice.

(4) A determination must be made as to whether an individual has complex needs.

(5) Assessments shall be strength-based and person-centered.

(g) The commissioner or his or her designee may prevent new admissions to the comprehensive psychiatric emergency program emanating from emergency medical services, ambulance services and law enforcement if a conclusion is reached that the ability of the program to deliver quality service would be jeopardized.

(1) The commissioner or his or her designee shall review the continued necessity for such prevention at least once every 24 hours according to a mutually developed plan.

(2) The comprehensive psychiatric emergency program shall develop a contingency plan with other local affiliated hospitals, emergency medical services and law enforcement for the prevention of new admissions during periods of high demand and overcrowding.

(3) Where a comprehensive psychiatric emergency program prevents new admissions pursuant to this paragraph, the comprehensive psychiatric emergency program must notify the appropriate OMH Field Office according to a mutually developed plan.

(h) Discharge criteria.

The provisions of section 29.15 of the Mental Hygiene Law shall not apply to the discharge of an individual from a comprehensive psychiatric emergency program, however:

(1) Discharge planning shall be conducted for all persons discharged from a comprehensive psychiatric emergency program who have been determined to require additional mental health services after triage and referral or full emergency visit and for those persons admitted to extended observation beds who require additional mental health services.

(2) Discharge planning criteria shall include at least the following activities prior to discharge from the comprehensive psychiatric emergency program:

(i) When determining whether an individual is ready for discharge and the most appropriate discharge setting, the whole clinical presentation and history, as well as the availability of existing services and supports in the individual's community, must be considered. This includes if an individual resides in a residential program licensed by the office or supportive housing.

(ii) The discharge plan shall be developed through shared decision making in a person-centered process and must reflect individual strengths and level of social support and address psychiatric, substance use disorder, chronic medical, and social needs. The plan must also address relevant information obtained from collateral sources of information.

(iii) For discharges of individuals with complex needs, the CPEP must provide a verbal clinical sign-out on the day of discharge, or as soon as possible thereafter, to the receiving outpatient behavioral health treatment program and, if applicable, the residential program licensed or funded by the office or Office of Addiction Services and Supports, Office for Persons with Developmental Disabilities or the Department of Health where the individual will reside after discharge. This must be done in accordance with section 33.13 of the Mental Hygiene Law.

(iv) The CPEP must send a discharge summary detailing the presenting history of present illness (HPI), hospital course, and other relevant information to the outpatient, residential, or long-term care program within seven days of discharge, in accordance with section 33.13 of the Mental Hygiene Law.

(v) If the individual is enrolled in outpatient (e.g., Health Home Care Coordination or Specialty Mental Health Care Management (Health Home Plus)), residential care management (e.g., OMH licensed or funded supportive housing or residential treatment), or has an active AOT order, CPEP staff must coordinate discharge plan details and timing with care managers.

(vi) For individuals with complex needs enrolled in a MCO Plan who are eligible but not enrolled in intensive care management or are enrolled in care management but need intensive care management, CPEP staff must call the MCO and inform the MCO of the discharge.

(vii) Prior to discharge, and in accordance with section 33.13 of the Mental Hygiene Law, the CPEP shall schedule and confirm a follow up appointment with an identified provider to occur within seven calendar days following discharge. If, after making diligent efforts, a CPEP cannot identify an aftercare provider with an available appointment within seven calendar days, the CPEP shall document its efforts and schedule the appointment for as soon as possible thereafter. A referral to a walk-in intake clinic is insufficient to meet this requirement. Individuals who are leaving the CPEP against medical advice, or who state they do not wish to receive aftercare services, shall be provided information about available treatment options and have an appointment scheduled whenever possible. When an appointment for mental health services cannot be made within seven calendar days, crisis outreach teams or other available comprehensive psychiatric emergency program staff shall provide crisis outreach until the initial appointment occurs and such services shall be reimbursed pursuant to section 591.4 of this Title.

(viii) completion of referrals to other community services providers, including peer support services, in collaboration with the individual receiving services and comprehensive psychiatric emergency program staff, to address the person's identified needs.

(ix) each individual shall be given the opportunity to participate in the development of his or her discharge plan. Absent the objection of the person and when clinically appropriate, reasonable attempts shall be made to contact collaterals for their participation in the discharge planning program. However, no person or family member shall be required to agree to the person's discharge. A notation shall be made in the person's record if such person objects to the discharge plan or any part thereof.

(x) All individuals must be screened for suicidality prior to their discharge. Individuals with an elevated risk of self-harm or suicide must have a community suicide safety plan completed before discharge. Lethal means shall be identified and a plan for restriction addressed in the Safety Plan. The CPEP shall document their work with collaterals to implement the plan to restrict lethal means and confirm completion prior to discharge.

(xi) Discharge of individuals with an elevated risk of violence shall include, to every extent possible, close collaboration with current and new outpatient treatment providers, residential providers if applicable, and the county DCS if applicable to incorporate strategies to address violence risk factors and access to weapons into the overall discharge plan in accordance with section 33.13 of the Mental Hygiene Law.

(xii) Individuals who meet criteria for any substance use disorder shall be offered pharmacological interventions, if appropriate, and referred to a new or existing provider who can continue treatment for their substance use disorder.

(3) The comprehensive psychiatric emergency program shall verify that after-care appointment(s) occurred and follow up with individuals to ensure satisfactory linkage to care. Until linkage to care is completed, or for other clinically-indicated reasons, comprehensive psychiatric emergency program staff shall provide crisis outreach services to ensure individuals are safe and stable in the community and continue to provide support, care and assistance with linkage to follow up care. Such services shall be reimbursed pursuant to section 591.4(f) of this Title.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.9 Services

(a) The comprehensive psychiatric emergency program shall directly provide or ensure the provision of psychiatric emergency services, seven days per week, which shall include but not be limited to crisis intervention services in an emergency room, crisis outreach services, extended observation beds and triage and referral services as such terms as defined in section 590.4 of this Part.

(b) Crisis intervention services shall be provided in the emergency room 24 hours per day, seven days per week and shall include psychiatric and medical evaluations and assessments which are used to determine the appropriateness of admission to and retention in the comprehensive psychiatric emergency program.

(1) Triage and referral services shall be performed as soon as practicable and in any event within six hours after an individual is admitted into the comprehensive psychiatric emergency program's emergency room.

(2) If a triage and referral visit is not conducted, a full emergency service shall be performed.

(3) Full emergency visit services shall be performed as soon as is practicable after an individual is determined to need such services. If a triage and referral visit is not conducted, a full emergency visit must be initiated within six hours.

(4) In any case, an individual shall not be retained in the comprehensive psychiatric emergency program emergency room for more than 24 hours at which point they must be admitted to an extended observation bed or a psychiatric inpatient bed.

(c) Crisis outreach shall be provided seven days per week, during at least the day and evening hours pursuant to a staffing plan approved by the Office of Mental Health.

(1) Such services may be provided directly by the comprehensive psychiatric emergency program or through written agreement with a provider of service approved by the Office of Mental Health.

(2) Crisis Outreach means face to face psychiatric emergency services provided outside an emergency room setting which includes evaluation, assessment and stabilization services. Crisis outreach services may be provided outside the emergency room of the hospital, in the community or in other clinical areas within the hospital, for purposes of face to face visits with individuals discharged from the comprehensive psychiatric emergency program. Crisis outreach does not have to result in an admission to the comprehensive psychiatric emergency program. For individuals discharged from comprehensive psychiatric emergency programs, crisis outreach includes face to face contact with a mental health professional for purposes of facilitating an individual's community tenure prior to engagement or re-engagement with a community-based provider.

(i) Crisis outreach services include but are not limited to assessment, therapeutic communication, coordination with identified supports, psychiatric consultation, safety planning, referral, linkage, peer services.

(ii) Crisis outreach referrals can be made through internal referrals, external referrals or through comprehensive psychiatric emergency program discharge referrals.

(d) Extended observation beds shall be available 24 hours per day, seven days a week to provide extended assessment and evaluation as well as a humane, safe environment which includes appropriate toilet, bath, and dietary facilities. The rationale for placement in extended observation beds shall be documented in the individual's case record and continued stay for up to 72 hours shall be subject to a daily written documentation of the need for continued retention.

(e) Triage and referral services as defined in section 590.4(b) of this Part, shall be available 24 hours per day, seven days per week and shall be provided to all individuals who receive services from the comprehensive psychiatric emergency program.

(f) Each comprehensive psychiatric emergency program shall provide information to individuals regarding the availability of peer counseling, family support, and/or self-help services.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.10 Staffing

(a) A comprehensive psychiatric emergency program shall continuously employ an adequate number of staff and an appropriate staff composition to carry out its goals and objectives as well as to ensure the continuous provision of sufficient ongoing and emergency supervision. Each comprehensive psychiatric emergency program shall submit a staffing plan which includes the qualifications and duties of each staff position by title. The staffing plan and its rationale shall be subject to approval by the Office of Mental Health. The Office of Mental Health must be notified of and approve any long-term deviations from the approved staffing plan.

(b) An adequate proportion of the clinical staff hours shall be provided by full-time employees.

(c) The comprehensive psychiatric emergency program shall, at a minimum, employ the following types and numbers of staff:

(1) except as provided in subdivision (e) of this section, at least one full-time equivalent psychiatrist who is a member of the psychiatric staff of the program shall be on duty and available at all times;

(2) at least one full-time equivalent registered nurse shall be on duty at all times and shall be responsible for the supervision of the nursing care and treatment provided in the extended observation beds of the comprehensive psychiatric emergency program;

(3) at least one full-time equivalent licensed master social worker or licensed clinical social worker shall be on duty and available, at a minimum, during the day and evening hours;

(4) a sufficient number of security personnel shall be on duty and available at all times;

(5) at least one full-time equivalent credentialed alcoholism and substance use disorder counselor or clinical staff person with experience in the counseling or treatment of individuals with a substance use disorder shall be available or on call 24 hours a day;

(6) the extended observation beds component of the comprehensive psychiatric emergency program shall be staffed by at least one clinical staff person, who is supervised by the registered nurse supervisor indicated in paragraph (2) of this subdivision, 24 hours per day, seven days per week; and

(7) when providing crisis outreach at a site other than the emergency room of the comprehensive psychiatric emergency program at least two staff of the crisis outreach team, one of whom is a member of the professional staff, shall be present at all times.

(i) For an initial crisis outreach visit, a member of the professional staff may respond alone if such need is determined.

(ii) For crisis outreach provided as a follow up to an initial crisis outreach visit or CPEP admission, a member of the staff may respond alone if such need is determined. This service maybe provided by professional staff, staff possessing a bachelor's degree or staff with a peer certification or credential working within their scope of practice.

(d) The commissioner may waive the requirement that one full time equivalent psychiatrist be on duty and available during the night hours, if:

(1) the comprehensive psychiatric emergency program can demonstrate that the volume of service does not require such level of staff coverage; and

(2) the comprehensive psychiatric emergency program can demonstrate that it can provide adequate coverage by other professional disciplines; and

(3) the comprehensive psychiatric emergency program can demonstrate the availability of a psychiatrist on call for consultation and supervision.

(e) For comprehensive psychiatric emergency programs which are within rural areas and which have 3,000 or less presentations per year, the commissioner may waive the requirement that one full-time equivalent psychiatrists be on duty and available if:

(1) the comprehensive psychiatric emergency program can demonstrate that the volume of service does not require such level of staff coverage;

(2) the comprehensive psychiatric emergency program can demonstrate that it can provide adequate 24-hour coverage by other professional staff; and

(3) the comprehensive psychiatric emergency program can demonstrate the availability of a psychiatrist on-call for face-to-face interaction, consultation, supervision, an admission to or discharge from an extended observation bed.

(f) In order to assure that individuals admitted to the comprehensive psychiatric emergency program are adequately supervised and are cared for in a safe and therapeutic manner, the comprehensive psychiatric emergency program shall meet each of the following requirements:

(1) appropriate professional staff shall be available to assist in emergencies on at least an on-call basis at all times.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.11 Special treatment procedures

(a) No comprehensive psychiatric emergency program shall use restraint or seclusion without a written plan for the use of restraint or seclusion, as defined in section 590.4 of this Part, which is in accordance with section 526.4 of this Title.

(b) No comprehensive psychiatric emergency program shall use extraordinary risk procedures. Extraordinary risk procedures include, but are not limited to, experimental treatment modalities and aversive conditioning.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.12 Case records

(a) There shall be a complete legible case record maintained for each individual admitted to a comprehensive psychiatric emergency program.

(b) The case record shall be available to all clinical staff, including peer specialists, recovery peer advocates, family peer advocate or youth peer advocate, of the comprehensive psychiatric emergency program who are participating in the treatment of the individual consistent with 45 C.F.R. parts 160 and 164.

(c) All individuals receiving services from the comprehensive psychiatric emergency program must have a case record which, at a minimum, includes a presentation note which indicates:

(1) a brief description of the presenting problem, critical needs and overall conditions;

(2) a brief description of the care and treatment required to safely and effectively address the individual's needs during the initial period after admission; and

(3) a brief description of the comprehensive psychiatric emergency program's attempts to contact collaterals in accordance with section 590.8 of this Part.

(d) In addition to the information called for in subdivision (c) of this section, each case record for individuals who receive a triage and referral visit, a full emergency visit, or are admitted to an extended observation bed or receive crisis outreach shall include:

(1) patient identifying information and available psychiatric medical and relevant social history, including the person's residential situation and the details of the circumstances leading to the individual's presentation at the comprehensive psychiatric emergency program, and the name of the person or persons who have referred or brought the individual to the comprehensive psychiatric emergency program, if any. In the case of individuals brought to the comprehensive psychiatric emergency program by law enforcement officers, the officers shall be interviewed and identified in the case record;

(2) diagnosis;

(3) assessment of the individual's treatment needs based upon psychiatric, physical, social and functional evaluations; and

(4) progress notes which relate to goals and objectives of treatment and document services provided.

(e) The following information is required for each case record for individuals who receive a full emergency visit and/or is admitted to an extended observation bed and may be included in the case record for individuals who receive a triage and referral visit and/or crisis outreach:

(1) reports of all mental and physical diagnostic exams, assessments, tests, and consultations;

(2) notes which relate to special circumstances and untoward incidents;

(3) dated and signed orders for all medications;

(4) discharge summary, including referrals to other programs and services, which must be completed within five days of discharge and;

(5) documentation of attempts to contact collaterals, including housing providers.

(f) The case record shall include documentation of the individual's status pursuant to mental hygiene law.

History

Amended New York State Register August 17, 2016/Volume XXXVIII, Issue 33, eff. 8/17/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.13 Premises

(a) The comprehensive psychiatric emergency program and any satellite facility shall maintain premises adequate and appropriate for the safe and effective operation of the program.

(b) The space provided shall be both adequate and appropriate for:

(1) the maintenance of privacy for interviews between staff members and persons served;

(2) the comfort and convenience of those waiting for and receiving services. No individual waiting for or receiving services may be placed in a hallway or other area not approved by the Office of Mental Health as a waiting or treatment area;

(3) accommodation of routine activities and regularly used equipment;

(4) controlled access to, and maintenance of, case records; and

(5) applicable Federal standards for space requirements which are necessary to assure continued receipt of Federal reimbursement for care and services provided in the comprehensive psychiatric emergency program or the host hospital.

(c) The emergency room of the comprehensive psychiatric emergency program shall be near or adjacent to the medical emergency room of the host hospital but shall be allocated physically discrete space acceptable to the Office of Mental Health.

(d) Extended observation beds shall be located in or adjacent to the comprehensive psychiatric emergency program emergency room unless otherwise authorized by the Office of Mental Health.

(e) The premises shall be reasonably maintained to ensure access to services by all individuals.

(f) Facilities shall comply with all local zoning and building laws, regulations and ordinances.

(1) Heating, lighting and ventilation shall be adequate for the comfort and well being of the persons served and the employees.

(2) A written certificate of occupancy, or equivalent, by the local building inspection authority shall be retained in the records of the program.

(3) Copies of all local inspection reports, and other relevant inspection reports, shall be maintained and available upon request.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 590.14 Statistical records and reports

(a) Such statistical information shall be prepared and maintained as may be necessary for the effective operation of the comprehensive psychiatric emergency program and as may be required by the Office of Mental Health.

(b) Statistical information shall be reported to the Office of Mental Health in a manner and within time limits specified by the Office of Mental Health.

(c) Statistical reporting shall be the responsibility of an individual whose name and title shall be made known to the Office of Mental Health.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

Part 591 Medical Assistance Payments For Comprehensive Psychiatric Emergency Programs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 591.1 Background and intent

This Part establishes standards for the reimbursement of comprehensive psychiatric emergency programs under the Medical Assistance Program. Comprehensive psychiatric emergency programs must comply with the requirements of Part 590 of this Title.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 591.2 Legal base

(a) Sections 7.09 (b), 7.15 and 31.04 (a) of the Mental Hygiene Law give the commissioner the power and responsibility to plan, establish and evaluate programs and services for the benefit of persons with mental illness, and to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(c) Section 31.27 of the Mental Hygiene Law gives the commissioner the authority to establish and license comprehensive psychiatric emergency programs.

(d) Section 43.02 of the Mental Hygiene Law provides that payments under the Medical Assistance Program for services at facilities licensed by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Budget.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 591.4 Standards pertaining to reimbursement

(a) The comprehensive psychiatric emergency program must have a valid operating certificate.

(b) The staff and services must conform with the requirements of Part 590 of this Title.

(c) The written records of the reimbursed unit of service, including presentation log, case records and discharge plans and summaries, as appropriate, must conform with the requirements of Part 590 of this Title.

(d) A patient may receive one triage and referral visit or one full emergency visit service in one calendar day. If a patient receives one of each, the comprehensive psychiatric emergency program shall receive reimbursement for the full emergency visit.

(e) A patient may receive one crisis outreach visit and either one triage and referral visit or one full emergency visit in one calendar day.

(f) A patient may receive crisis outreach services for a period of time that allows for linkage to services after discharge from the emergency room of the comprehensive psychiatric emergency program.

(g) In any calendar day comprehensive psychiatric emergency services reimbursed pursuant to this Part shall not be included in the limitation on the number of reimbursed services included in Part 588 of this Title.

(h) The services provided in a medical/surgical emergency setting for comorbid conditions shall be separately reimbursed.

(i) The standards of reimbursement included within this Part shall be in effect as long as continued Federal financial participation is assured.

History

Amended New York State Register May 19, 2021/Volume XLIII, Issue 20, eff. 5/5/2021

Part 593 Medical Assistance Payments For Community Rehabilitation Services Within Residential Programs For Adults And Children And Adolescents

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.1 Background and intent

(a) This Part establishes standards for reimbursement under the medical assistance program for community rehabilitation services provided by residential programs for adults with mental illness and children and adolescents with serious emotional disturbance.

(b) This Part establishes standards for service planning and review for programs receiving reimbursement under the medical assistance program for the provision of community rehabilitation services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.2 Legal base

(a) Sections 7.09 and 31.04 of the Mental Hygiene Law give the commissioner the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(c) Section 43.02 (a) and (b) of the Mental Hygiene Law gives the commissioner the authority to request operators of facilities licensed by the Office of Mental Health to submit financial, statistical and program information as the commissioner may determine to be necessary.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.3 Applicability

(a) This Part applies to any provider of service, licensed pursuant to Part 594 or Part 595 of this Title, which proposes to operate a residential program for adults with mental illness and/or children or adolescents with serious emotional disturbance.

(b) This Part does not apply to the operation or proposed operation of a proprietary program.

(d) This Part does not apply to the operation or proposed operation of congregate type residential programs for adults of greater than 16 beds.

(e) The standards of reimbursement in section 593.7 of this Part shall be in effect as long as continued Federal financing participation is assured.

(f) This Part does not apply to crisis residence programs.

(g) This Part does not apply to the operation of a community residence for eating disorder integrated treatment (CREDIT) program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.4 Definitions

(a) General definitions.

(1) In residence means currently admitted to and residing in a program governed by this Part and not on leave as an inpatient of any hospital for any reason or temporarily residing in any other licensed residential facility.

(2) Qualified mental health staff person means:

(i) a physician who is currently licensed as a physician by the New York State Education Department; or

(ii) a psychologist who is currently licensed as a psychologist by the New York State Education Department; or

(iii) a social worker who is either currently licensed as a licensed master social worker or as a licensed clinical social worker by the New York State Education Department or has a master's degree in social work from a program approved by the New York State Education Department; or

(iv) a registered professional nurse who is currently licensed as a registered professional nurse by the New York State Education Department; or

(v) a creative arts therapist who is currently licensed as a creative arts therapist by the New York State Education Department; or

(vi) a marriage and family therapist who is currently licensed as a marriage and family therapist by the New York State Education Department; or

(vii) a mental health counselor who is currently licensed as a mental health counselor by the New York State Education Department; or

(viii) a psychoanalyst who is currently licensed as a psychoanalyst by the New York State Education Department; or

(ix) an individual having education, experience and demonstrated competence, as defined below:

(a) a master's or bachelor's degree in a human services related field; or

(b) in residential programs serving adults:

(1) an associate's degree in a human services related field and three years' experience in human services; or

(2) a high school degree and five years' experience in human services; or

(x) other professional disciplines which receive the written approval of the Office of Mental Health.

(3) A congregate residence, for the purpose of this Part, means a group living design requiring supervisory staff on-site 24 hours per day.

(4) An apartment, for the purpose of this Part, means a program organized as a self- contained unit requiring an appropriate level of staff support.

(5) A residential program for children and adolescents, for the purpose of this Part, means teaching family home and community residence programs licensed pursuant to Part 594 of this Title.

(6) Downstate, for the purpose of this Part, means New York City and Nassau, Suffolk and Westchester Counties.

(7) Upstate, for the purpose of this Part, means all other counties not included in paragraph (6) of this subdivision.

(8) Approved costs, for the purpose of this Part, means the prospective annual expenditures approved by the Office of Mental Health and the Division of the Budget for each provider of rehabilitation services.

(b) Service definitions for programs serving adults.

(1) Assertiveness/self advocacy training means training which is designed to promote the individual's ability to assess his or her needs to make a life status change and to increase self-awareness about his or her values and preferences. Training will also increase an individual's ability to respond to medical, safety and other personal problems. Activities are also intended to improve communication skills and facilitate appropriate interpersonal behavior.

(2) Community integration services/resource development means activities which are designed to help individuals to identify skills and community supports necessary for specific environments, to assess their skills strengths and deficits in relationship to environmental demands, to assess resources available to help the individuals, and to develop a natural support system by accessing social, educational and recreational opportunities.

(3) Daily living skills training means activities which focus on the acquisition of skills and capabilities to maintain primary activities of daily life. Services are provided by addressing areas of functioning in categories such as: dressing, personal hygiene and grooming, selection and/or preparation of food, cleaning and washing of clothes, maintenance of environment, budgeting and money management. Training is intended to increase those competencies needed by the individual to live in his or her goal environment.

(4) Health services means training to maximize independence in personal health care by increasing the individual's awareness of his or her physical health status and the resources required to maintain physical health, including regular medical and dental appointments, basic first aid skill and basic knowledge of proper nutritional habits and family planning. Also included is training on topics such as AIDS awareness.

(5) Medication management and training means the storage, monitoring, recordkeeping and supervision associated with the self-administration of medication. This does not include prescribing, but does include a certain degree of reviewing the appropriateness of the residents' existing regimen with his or her physician. Activities which focus on educating residents about the role and effects of medication in treating symptoms of mental illness and training in the skill of self-medication are also included.

(6) Parenting training means structured activities intended to promote positive family functioning and enable residents to assume parenting responsibilities. Activities include peer support groups to foster skills around effective parenting, assistance in selecting and obtaining housing appropriate for families, and linkage with the children's service system. Psycho-education programs on parenting skills, single parenting issues, child care and the nature of mental illness and its effect on the family are also included.

(7) Rehabilitation counseling means a therapeutic modality which includes assisting the individual in clarifying future directions and the potential to achieve rehabilitation goals, identifying and specifying behaviors that impede goal setting, improving awareness of the influence of environmental stress, and helping an individual to generalize newly learned behaviors to housing and other situations outside the program structure.

(8) Skill development services means activities which assist clients to gain and utilize the skills necessary to undertake employment or pursue educational opportunities. This may include skills related to securing appropriate clothing, scheduling, work-related symptom management, and work readiness training.

(9) Socialization means activities which are intended to diminish tendencies toward isolation and withdrawal by assisting residents in the acquisition or development of social and interpersonal skills. Socialization is an activity meant to improve or maintain a resident's capacity for social involvement by providing opportunities for application of social skills. This occurs through resident and staff interaction in the program and through exposure with staff to opportunities in the community. Modalities used in socialization include individual and group counseling and behavior intervention.

(10) Substance abuse services means services provided to increase the individual's awareness of alcohol and substance abuse and reduction or elimination of its use: such services shall include verbal and medication therapies, psycho-educational approaches and relapse prevention techniques, but shall not include acupuncture without prior Office of Mental Health approval.

(11) Symptom management, for the purpose of this Part, means activities which are intended to achieve a maximum reduction of psychiatric symptoms and increased functioning. This includes the ongoing monitoring of residents' mental illness symptoms and response to treatment, interventions designed to help residents manage their symptoms and assisting residents to develop coping strategies to deal with internal and external stressors. Services range from providing guidance around everyday life situations to addressing acute emotional distress through crisis management and behavior intervention techniques.

(1) Behavior management training means activities which provide guidance and training in behavior intervention techniques and practice of skills to increase the capacity to manage one's behavior from everyday life situations to acute emotional stress. Such activities shall focus on interventions which assist in identifying internal or external stressors and developing coping strategies to address such stressors.

(2) Counseling services means the use of individual or group therapeutic modalities which provide an environment for assisting in clarifying future direction, identifying personal potential, identifying behaviors or feelings that assist or interfere with the achievement of goals; identifying and working through internal issues that interfere with daily functioning. Such modalities shall also foster the development of skills which assist in the reinforcing and generalizing of newly-learned positive behaviors to school, home and other community situations outside of the program structure.

(3) Daily living skills training means activities which focus on the acquisition of skills and capabilities to perform primary activities of daily life. The activities which are provided address areas of functioning such as: dressing, personal hygiene and grooming, selection and preparation of food, cleaning and washing of clothes, maintenance of the environment, and budgeting and money management. Such activities shall increase the responsibility needed to maintain the primary activities of daily life.

(4) Family support services means activities which are needed to maintain a relationship with one's family. Such activities shall provide training in skills needed for success in the discharge living environment and for maintaining a relationship with family. Opportunities to practice and develop skills should be provided in addition to establishing an ongoing linkage to the discharge living environment.

(5) Health services means activities which increase developmentally appropriate independence in personal health care and maintenance. Such activities include but are not limited to addressing values clarification regarding one's body and health, helping youth make choices regarding one's body and health, increasing awareness of personal physical health, basic nutrition, the dangers of substance abuse, sexual development, sexually transmitted diseases and HIV/AIDS, the role of exercise and sleep, as well as identifying practices and resources necessary to maintain physical health.

(6) Independent living skills training mean activities which assist with the integration of developmentally responsible behaviors and generalization of skills for the purpose of completing educational requirements, meeting citizen requirements, setting up and managing a household, seeking and maintaining an educational placement or job, identifying and accessing positive supports, and responsible decisionmaking in the community.

(7) Medication management and training means activities which provide information to ensure appropriate management of medication through understanding the role and effects of medication in treatment, identification of side effects of medication and discussion of potential dangers of consuming other substances while on medication. Training in self medication skills is also an appropriate activity, when developmentally and clinically indicated.

(8) Socialization means activities which assist in the development and practice of age appropriate social and interpersonal skills. Such activities shall promote the capacity to identify and participate in positive social situations and to develop and practice appropriate communication skills. Modalities used to reinforce the development of socialization skills may include modeling, individual and group counseling and behavioral interventions in a variety of settings with both adults and peers.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.5 Eligibility requirements

(a) In order to receive reimbursement for community rehabilitation services pursuant to this Part, each program operated by a provider of service shall have a valid operating certificate issued by the Office of Mental Health as well as a contract to provide services.

(b) Reimbursement shall be made only for community rehabilitation services provided to individuals who have been authorized in writing as set forth in section 593.6 of this Part to receive community rehabilitation services provided by a licensed residential program. Such individuals must have a severe and persistent mental illness or, for children and adolescents, serious emotional disturbance, as defined by the commissioner in the Office of Mental Health's Annual Statewide Comprehensive Plan for Mental Health Services developed pursuant to section 5.07 of the Mental Hygiene Law. Community rehabilitation services are delineated in section 593.4(b) and (c) of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.6 Service authorization and planning requirements

(a) In order to receive reimbursement for the provision of community rehabilitation services to an individual, the provider of service must ensure that the individual has been authorized in writing by a physician, prior to or upon admission, to receive services as provided by the program. The written authorization must be retained as a part of the individual's case record. The physician's authorization must:

(1) be based upon appropriate clinical information and assessment of the individual. The initial authorization must include a face-to-face assessment;

(2) delineate the maximum duration of the authorization to receive such services; and

(3) specify that the individual is in need of community rehabilitation services as defined in section 593.4(b) of this Part.

(b) Service authorizations which are renewed must be signed by a physician, physician assistant, or nurse practitioner in psychiatry. Service authorizations must be renewed as follows:

(1) every six months for individuals residing within congregate residences and residential programs for children and adolescents. The reauthorization for a child or adolescent must include a face-to-face contact with the physician, physician assistant or nurse practitioner in psychiatry who signs and renews the service authorization;

(2) every 12 months for individuals residing within an apartment program; and

(3) upon transfer to a different category of adult program (i.e., congregate to apartment or apartment to congregate). The authorization renewal must, in the case of a transfer from congregate to apartment, occur upon the expiration date of the current authorization or in the case of a transfer from apartment to congregate, within six months of admission to the new program or the expiration of the current authorization, whichever comes first.

(c) Community rehabilitation services shall be provided in accordance with a service plan developed within four weeks of admission to the program. At the time of admission an admission note must be prepared by a qualified mental health staff person which, at a minimum, indicates a description of the needs of the individual as well as a brief description of the community rehabilitation services necessary to meet these needs during the initial period after admission.

(d) Such plan shall be developed by the staff of the program, resident and any collateral identified for participation in planning, as appropriate. The service plan must be reviewed and signed by a qualified mental health staff person. The service plan development process should facilitate mutual agreement on a planned course of action which, at a minimum, identifies the following:

(1) statement of service goals and objectives;

(2) identification of the community restorative services to be provided;

(3) proposed time periods;

(4) efforts to coordinate services with other providers, as appropriate; and

(5) approval of the resident, as documented by his or her signature (or the signature of the person who has legal authority to consent to health care on behalf of the resident) provided, however, that the lack of such signature shall not constitute noncompliance with this requirement if the reasons for non-participation and/or non-approval by the resident are documented in the progress note.

(e) Progress notes shall be recorded by staff members who are authorized by the program. Such notes shall be prepared at least monthly and shall indicate the type of community rehabilitation services which have been provided, any significant events which have occurred and, if appropriate, any recommendations for changes to the goals and objectives of the service plan.

(f) The service plan shall be reviewed at least every three months with the initial review occurring three months from the date of admission. The review shall include participation of staff involved in the provision of community rehabilitation services to the resident, the resident and/or if appropriate and approved by the resident, the resident's family or other collateral. Such review shall include the following:

(1) assessment of the progress of the resident in regard to mutually agreed upon goals and objectives in the service plan;

(2) recommendations for adjustment of goals and objectives, time periods for achievement, intervention strategies for the initiation of discharge planning; and

(3) review of the service plan and signed approval by a qualified mental health staff person.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.7 Reimbursement standards

(a) In order to receive reimbursement for the provision of community rehabilitation services, each individual must have a service plan which documents the delivery of appropriate community rehabilitation services which have been authorized by a physician, or reauthorized pursuant to section 593.6(b) of this Part.

(b) Reimbursement will be based upon monthly and half-monthly rates. Such rates shall be paid based upon a minimum number of face-to-face contacts between an eligible resident of a program and a staff person of an approved provider of community rehabilitation services, subject to the following provisions:

(1) A full monthly rate will be paid for services provided to an eligible resident in residence for at least 21 days in a calendar month, who has received at least four contacts with a staff person of the program. For a teaching family home program, a youth shall have received at least 11 contacts, at least three of which must be provided by authorized program staff other than the teaching parents. At least four different community rehabilitative services must have been provided.

(2) A half monthly rate will be paid for services provided to an eligible resident in residence for at least 11 days in a calendar month, who has received at least two contacts with a staff person of the program. For a teaching family home program, a youth shall have received at least six contacts, at least two of which must be provided by authorized program staff other than the teaching parents. At least two different community rehabilitation services must have been provided.

(3) Only one contact can be counted each day and such contact shall be at least 15 minutes in duration.

(4) For reimbursement purposes, a contact shall involve the performance of at least one of the services indicated in the resident's current service plan.

(5) A reimbursable contact may occur at or away from the program, except that a reimbursable contact may not occur at the site of a licensed mental health outpatient program as such programs are described in Part 587 of this Title, nor when the otherwise eligible resident is an inpatient of any hospital for any reason or temporarily residing in any other licensed residential facility.

(6) Reimbursement for contacts provided under this program shall not be limited in any way by reimbursement for visits under any outpatient program licensed by the Office of Mental Health on the same day or reimbursement for visits provided by any comprehensive Medicaid case management program approved by the Office of Mental Health.

(c) The rates for each approved residential program for adults and community residence programs for children shall be established by the Office of Mental Health, subject to the approval of the Director of the Budget, pursuant to the following criteria:

(1) Providers of rehabilitation services shall be assigned an individual provider monthly rate based upon their cumulative approved costs for all sites divided by the maximum capacity for their sites divided by 12 months, divided by the specific utilization factor established by the Office of Mental Health for beds in adult congregate programs, adult apartment programs or for children's residential services programs. Rates for a half month service shall be 50 percent of the monthly rate. The rate calculated under this methodology will be reduced by $4 for a full month and $2 for a half month rate to account for payment pursuant to subdivision (d) of this section. All rates subject to the approval of the Division of Budget.

(2) All rates for providers in New York City calculated pursuant to paragraph (1) of this subdivision will be effective through May 31st of each year. All rates for providers in the rest of the State shall be effective through November 30th. The commissioner may authorize changes to rates to correct errors in the original calculation of the rate or to reflect changes in approved costs.

(3) The rate methodology for rehabilitation services provided in residential programs operated by the Office of Mental Health shall be the same as for other licensed providers except that there shall be one statewide rate which shall be the lower of the calculated rate or the highest rate approved for other providers. The rate shall be promulgated on the same schedule as for providers outside New York City.

(d) In addition to the rates allowed in paragraph (c)(1) of this section, a provider may receive an additional rate of $1 for each allowable service which is provided, as delineated in section 593.4(b) or (c) of this Part. No one service however may be reimbursed more than once each month and no more than four may be reimbursed accompanying a full month reimbursement nor more than two accompanying a half month's reimbursement.

(e) In addition to the rates allowed in paragraph (1) of subdivision (c) of this section, for services provided on or after April 1, 2014, a provider shall receive the equivalent of an additional 30 percent rate add-on for up to two years for community rehabilitation services provided to adults who were discharged directly from a State psychiatric center or nursing home to a congregate residence. A provider shall receive the equivalent of an additional 15 percent rate add-on for up to three years for community rehabilitation services provided to adults who were discharged directly from a State psychiatric center or nursing home to an apartment residence.

History

Amended, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 593.8 Enforcement of service planning and reimbursement standards

(a) The Office of Mental Health may review any program which receives reimbursement pursuant to this Part to determine whether such program is in compliance with this Part or other requirements established by State or Federal agencies.

(b) A provider of services shall exercise due diligence in complying with the requirements of this Part. Due diligence means the exercise of reasonable and appropriate efforts to ensure that reimbursement is sought only for authorized services and that the service planning and review process is implemented pursuant to section 593.6 of this Part.

(c) To facilitate determinations as to whether providers are exercising the requisite due diligence, the Office of Mental Health may develop and maintain profiles of performance of providers of service which shall permit comparison of providers of service.

(d) If, based on a review of profiles of performance and such additional information as may be available, the Office of Mental Health determines that a provider of service is not exercising due diligence, the Office of Mental Health shall give notice of the deficiency to the provider of service and may also initiate the following:

(1) request that the provider of service prepare a plan of correction, which shall be subject to approval by the Office of Mental Health; and

(2) provide such technical assistance as the Office of Mental Health deems necessary to assist the provider of service in developing and implementing an appropriate plan of correction.

(e) If the provider of service fails to prepare an acceptable plan of correction within a reasonable time or refuses to permit the Office of Mental Health to provide technical assistance or fails to promptly or effectively implement a plan of correction which has been approved by the Office of Mental Health, it shall be determined that the provider of service is in violation of this Part.

(f) Upon a determination that a provider of service is in violation of this Part or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate or impose fines in accordance with Mental Hygiene Law section 31.16 and Parts 53 and 503 of this Title.

(g) Notwithstanding the provisions of this section, if a provider of service seeks reimbursement in excess of the limits imposed in section 593.7 of this Part, the provider shall be presumed to have violated the provisions of this Part, whereupon the Office of Mental Health shall notify the Department of Health in order that the Department of Health may exercise its authority to recover such overpayment as may have occurred.

(h) Nothing in this section shall limit or preclude the commissioner from taking whatever immediate measures may be necessary, including the exercise of his authority under Mental Hygiene Law, sections 31.16(b) and 31.28, in the event that a resident's health or safety is in imminent danger or there exists any condition or practice which poses imminent danger to the health or safety of any resident or the public.

Part 594 Operation Of Licensed Housing Programs For Children And Adolescents With Serious Emotional Disturbances

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.1 Background and intent

(a) It is the purpose of these regulations to establish standards which secure the right of children and youth identified as having serious emotional disturbance to be treated within a family-like setting. Although treatment within an individual's family is preferable, when this is not possible, alternative types of residential settings must be made available to meet the treatment needs of children and youth identified as having a serious emotional disturbance. These settings should strive to provide services in an individualized, family-centered, community-based manner.

(b) It is the purpose of these regulations to establish standards for licensed housing programs which provide residential treatment alternatives for children and youth who require such treatment in this setting due to a serious emotional disturbance. This Part sets forth standards for licensed housing for three types of residential options: teaching family homes, community residences, (including the Community Residence for Eating Disorder Integrated Treatment "CREDIT" Program), and crisis residences.

(c) It is the intent of the Office of Mental Health to establish residential treatment options which have as their primary goal the return of children and youth to a permanent family-like setting and to prepare the children and youth for successful independent living as appropriate. Such programs shall also provide support to the family which includes education and counseling relating to the child's mental health disability, collaborative techniques in supporting the child's emotional and maturational development, and community resources to support the successful return of the child to his/her home community and family. In addition, it shall be the mission of each residential option to provide a safe environment which ensures protection from harm, abuse, and neglect; to encourage emotional, intellectual and physical growth; and to ensure that individualized treatment is provided with sensitivity to cultural and ethnic considerations.

(d) It is the intent of the Office of Mental Health to establish residential treatment options which provide rehabilitation services and treatment for children and youth that result in outcomes of successful functioning and integration into the family, community, school or independent living situations and vocational opportunities as appropriate. Such services shall be provided in consideration of a child's developmental stage with careful attention to individual strengths, needs and desires throughout the process of rehabilitation and skills development.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.2 Legal base

(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 persons with mental illness pursuant to an operating certificate.

(b) Section 31.02 of the Mental Hygiene Law prohibits any individual, association, corporation or public or private agency from operating a residential facility for the care, treatment, rehabilitation or training of persons with mental illness unless an operating certificate has been obtained from the Commissioner of Mental Health.

(c) 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 and 31.17 of the Mental Hygiene Law authorize the commissioner to suspend, revoke or limit any operating certificate.

(d) Section 31.25 of the Mental Hygiene Law requires that the Commissioner of Mental Health establish, pursuant to regulation, licensed residential providers of treatment and/or supportive services to individuals with eating disorders.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.3 Applicability

(a) This Part applies to the operation or proposed operation of a licensed housing program, including teaching family home, crisis residence, and community residence programs, including Community Residence for Eating Disorder Integrated Treatment (CREDIT) programs, for children and adolescents licensed pursuant to article 31 of the Mental Hygiene Law.

(b) This Part applies to the operation or proposed operation of a State-operated licensed housing program for children and adolescents.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.4 Definitions

For purposes of this Part:

(a) General.

(1) Admission criteria means factors which are identified for use by the provider of services in determining a youth's eligibility for admission to a licensed housing program.

(2) Child, adolescent, or youth means:

(i) for persons admitted to licensed housing programs (including teaching family homes, community residence programs that are not CREDIT programs, or State operated licensed housing programs for children and adolescents), an individual who has attained at least the 5th birthday but not the 18th; or

(ii) for persons admitted to community residences that are CREDIT programs, an individual who has attained at least the 12th birthday but not the 19th.

(3) Collaterals means members of the child or adolescent's family or household, or significant others other than staff members of mental health programs, who regularly interact with the child or adolescent and are directly affected by or have the capability of affecting the child's or adolescent's condition and are identified in the service plan as having a role in treatment.

(4) Community Residence Program (CR) means a program which provides a therapeutic environment for six to eight children and adolescents with serious emotional disturbances whose individual treatment issues preclude family settings or who may need to prepare for independent living. The focus of the program is to develop and implement a plan with the youth and family on how to live successfully and productively in a community, attend school or prepare for employment and develop the skills needed to return to more normative environments. The program emphasizes consumer and family-driven integration in the community, collaboration with other service providers, consumer input and family involvement, and development of community life roles and natural supports.

(5) Community Residence for Eating Disorder Integrated Treatment Program (CREDIT program) is a subclass of community residence program for children and adolescents who have been diagnosed with an eating disorder, whose individual treatment issues preclude family settings or other less restrictive alternatives.

(6) Crisis residence means a program which provides a short-term (1-21 day) crisis residential option for children and adolescents experiencing a crisis which threatens psychiatric stability and provides crisis supports to the youth, the family and/or to the service provider. The goal of the program is to stabilize the crisis situation; support the family's or service provider's efforts to maintain the child or adolescent in his or her current residence, and to decrease the inappropriate use of an inpatient facility or other out-of-home placements.

(7) Designated mental illness diagnosis means that the youth currently meets the criteria for a psychiatric diagnosis in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), or has a diagnosis of an eating disorder as defined in this section, but excluding alcohol or drug disorders, organic brain syndromes, developmental disabilities or social conditions (V-codes). ICD-9-CM categories and codes that do not have an equivalent in DSM-III-R are also not included as designated mental illness diagnosis.

(8) Discharge planning means the continuing process of planning for termination of services from a licensed housing program through the utilization of an individual's strengths in the identification of residential or other community resources and natural supports needed for the transition of the resident to another residential option or return to the family and making the necessary referrals, including linkages for treatment, rehabilitative and support services.

(9) Eating disorder shall have the same meaning as defined in section 2799-e of the Public Health Law and shall include, but not be limited to, conditions such as anorexia nervosa, bulimia and binge eating disorder, identified as such in the most current edition of the International Classification of Disease or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders, or other medical and mental health diagnostic references generally accepted for standard use by the medical and mental health fields.

(10) Family-centered care means the degree to which a service is oriented toward meeting the needs of the family rather than requiring the family to conform to the nature of the program.

(11) Provider of service means the entity which is responsible for the operation of a program. Such entity may be an individual, partnership, association or corporation.

(12) Qualified mental health staff person means:

(i) a physician who is currently licensed as a physician by the New York State Education Department; or

(ii) a psychologist who is currently licensed as a psychologist by the New York State Education Department; or

(iv) a registered nurse who is currently licensed as a registered professional nurse by the New York State Education Department; or

(v) an individual having a master's or bachelor's degree in a human services related field; or

(vi) a creative arts therapist who is currently licensed as a creative arts therapist by the New York State Education Department; or

(vii) a marriage and family therapist who is currently licensed as a marriage and family therapist by the New York State Education Department; or

(viii) a mental health counselor who is currently licensed as a mental health counselor by the New York State Education Department; or

(ix) a psychoanalyst who is currently licensed as a psychoanalyst by the New York State Education Department; or

(x) a nurse practitioner who is currently certified as a nurse practitioner by the New York State Education Department; or

(xi) for purposes of a CREDIT program, a registered dietitian who is currently licensed by the New York State Education Department; or

(xii) other professional disciplines which receive the written approval of the Office of Mental Health.

(13) Teaching family home program (TFHP) means a program which provides an individually tailored treatment-oriented residential environment for children and adolescents with serious emotional disturbances. Each individual home can serve up to four children and adolescents. The program utilizes carefully selected and trained teaching parents and child care staff who provide services, support and education to the youth and their families. The youths' mental health-related challenges may preclude them from the closeness of a family setting and are best addressed in a small group setting. The focus of the program is to provide the necessary supports and teaching to ensure that each youth will be able to live successfully in a family or independently, can meet with success in school or vocational activities, and live productively in the community. The program emphasizes integration in the community, collaboration with other service providers, consumer input and family involvement.

(b) Service definitions.

(1) Behavior support (also known as behavior management training) means activities which provide guidance and training in behavior intervention techniques and practice of skills to increase the capacity to manage one's behavior from everyday life situations to acute emotional stress. Such activities shall focus on interventions which assist in identifying internal or external stressors and developing coping strategies to address such stressors. In the CREDIT program, "behavioral support" includes specific attention towards managing the secondary issues which may accompany an eating disorder such as depression, anxiety and substance abuse.

(2) Case management means the process of linking the youth and family, where appropriate, to the community service system and coordinating the provision of services with the objective of continuity of care and service. Case management includes the following components:

(i) Linking. The process of referring the youth to ensure linkages for treatment, rehabilitative and support services and all other services and supports as specified in the individual service plan.

(ii) Case-specific advocacy. The process of interceding on behalf of the youth to gain access to needed treatment, rehabilitative support services.

(iii) Monitoring. The process of observing the youth to assure that needed treatment, rehabilitative and support services are received.

(3) Counseling services means the use of individual or group therapeutic modalities which provide an environment for assisting in clarifying future direction, developing meaningful goals, identifying personal strengths, identifying mental health-related behaviors or feelings that assist or interfere with the achievement of goals, and integrating into the community. Such modalities shall also foster the development of skills which assist in the reinforcing and generalizing of newly learned positive behaviors to school, home, employment and other community situations outside of the program structure. In the CREDIT program, counseling services includes specific emphasis on assisting children and adolescents in developing appropriate body image as well as wellness self-management techniques for maintaining this progress.

(4) Daily living skills training means activities which focus on the acquisition of skills and capabilities to perform primary activities of daily life. The activities which are provided address areas of functioning such as: dressing, personal hygiene and grooming, selection and preparation of food, cleaning and washing of clothes, maintenance of the environment, and budgeting and money management. Such activities shall increase the responsibility needed to maintain the primary activities of daily life. In the CREDIT program, daily living skills training includes specific emphasis on the planning, preparation and consumption of nutritious meals.

(5) Educational-vocational support services means activities which include training, practice and supervision to promote regular attendance at school or work, including completion of homework or work assignments, while encouraging accuracy and neatness in homework assignments, development of time management and prioritization of tasks and facilitation of positive teacher/supervisor relations.

(6) Family support services means activities which are needed to maintain and/or develop a positive relationship with one's family. Such activities shall provide training in skills needed for success in the discharge living environment such as implementation of a safety plan which includes ongoing family support and for maintaining a positive relationship with family. Opportunities to practice and develop skills should be provided in addition to establishing an ongoing linkage to treatment, rehabilitative and support services in the discharge living environment.

(7) Health services means activities which increase developmentally appropriate independence in personal health care and maintenance. Such activities include but are not limited to addressing values clarification regarding one's body and health, helping youth to make choices regarding their health and welfare, increasing awareness of personal physical health, basic nutrition, the dangers of substance abuse, sexual development, sexually transmitted diseases and HIV/AIDS, the role of exercise and sleep, as well as identifying practices and resources necessary to maintain physical health. In the CREDIT program, health services may also include assistance and monitoring of the youth's activities relating to food, meals, and weight management.

(8) Independent living skills training means activities which assist with the integration of developmentally responsible behaviors and generalization of skills for the purpose of completing educational and vocational requirements, meeting citizenship requirements, setting up and managing a household, seeking and maintaining an educational placement or job, identifying and accessing positive supports, and responsible decisionmaking in the community.

(9) Medication management and training means activities which provide information to ensure appropriate management of medication through understanding the role and effects of medication in treatment, identification of side effects of medication and discussion of potential dangers of consuming other substances while on medication. Training in self-medication skills is also an appropriate activity, when developmentally and clinically indicated.

(10) Medication monitoring means activities performed by staff which relate to storage, monitoring, recordkeeping and supervision associated with the use of medication. Such activities include reviewing the appropriateness of an existing regimen by staff with the prescribing physician. Prescribing medication is not an activity included under this service.

(11) Respite means the provision of brief temporary care to children and youth with serious emotional disturbances, with the primary purpose of providing relief to families or caretakers. Such care may occur while the child is out of home or in home.

(12) Socialization means activities which assist in the development and practice of age-appropriate social and interpersonal skills. Such activities shall promote the capacity to identify and participate in positive social situations and to develop and practice appropriate communication skills. Modalities used to reinforce the development of socialization skills may include direct skill teaching, modeling, individual and group counseling and behavioral interventions in a variety of settings with both adults and peers.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.5 Certification

(a) An operating certificate, valid for a period not to exceed three years, will be issued to housing programs which comply with the requirements stated in this Part.

(b) Pursuant to Part 551 of this Title, applications for new operating certificates shall be submitted to the Office of Mental Health on required forms in accordance with the instructions therein. The application shall state the type of housing program and shall include a functional program which describes in detail the required information as prescribed pursuant to section 594.7 of this Part. A single application for each program shall be submitted.

(c) Renewal applications shall be submitted to the Office of Mental Health on required forms in accordance with the instruction therein. Requests for recertification should be submitted to the Office of Mental Health at least three months prior to the expiration of the existing operating certificate.

(d) The operating certificate shall be available to be shown to anyone requesting to see it.

(e) All operating certificates shall remain the property of the Office of Mental Health, and expired, invalidated, revoked or terminated certificates shall be returned to the Office of Mental Health.

(f) No operating certificate is transferable.

(g) The certified capacity of any residence shall not be exceeded at any time.

(1) Teaching family homes shall have a maximum certified capacity of four.

(2) Children's community residences, (including CREDIT programs) and crisis residences shall have maximum certified capacities of eight. If bedroom space is adequate, capacity may be increased by one for respite purposes.

(h) The Prior Approval Review (PAR) procedures in accordance with Part 551 of this Title shall be required of a provider of services that wishes to:

(1) change the physical location of the facility, or utilize additional physical locations, premises or parts of premises;

(2) significantly change the number and types of staff;

(3) initiate major changes in program, including but not limited to changes in the criteria for admission or discharge of residents, or changes in the target population;

(4) change the resident capacity of the program; or

(5) purchase, change ownership, or alter the premises of the program.

(i) The provider of service shall notify the Office of Mental Health of any intention regarding alterations which are planned in a leased building in which the facility is located which affect or could affect the usability of any part of the facility by persons with physical disabilities.

(j) The provider of service shall notify the Office of Mental Health of any intention to terminate voluntarily the operation of the housing program.

(1) Such notice of intention to terminate voluntarily shall include a statement of the actions which will be taken to assure appropriate referral of youth in residence, preserve the confidentiality of records and to settle financial accounts according to pre-existing individual agreements.

(2) Such notice shall be submitted at least 90 days prior to termination of operation.

(k) If through catastrophe such as, but not limited to, fire, flood or earthquake, a housing program is unable to operate as certified, the governing body shall be responsible for providing emergency accommodations and continuing support to all residents until such time as the housing program can be made habitable or alternate stable living accommodations can be found.

(l) The provider of service shall cooperate with the Office of Mental Health during any review or inspection of the housing program.

(m) The commissioner may revoke, suspend or limit the operating certificate upon his finding that a housing program has failed to comply with the terms of any operating certificate or with the provisions of any applicable statute, rule or regulation. The certificate holder shall be given notice and an opportunity to be heard prior to any such action.

(n) Pending a determination pursuant to subdivision (m) of this section, the commissioner may, upon written notice to the provider of service, suspend the certificate for not more than 30 days upon finding that the continued operation of the housing program presents an immediate danger to the health and welfare of any of the youth residing therein.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.6 Organization and administration

(a) The provider of service shall identify a governing body which shall have overall responsibility for the operation of the program. The governing body may delegate responsibility for the day-to-day management of the program to appropriate staff pursuant to an organizational plan approved by the Office of Mental Health. No individual shall serve as both member of the governing body and of the paid staff of the program without prior approval of the Office of Mental Health.

(b) The governing body shall be responsible for the following duties:

(1) to meet at least four times a year;

(2) to review, approve and maintain minutes of all official meetings;

(4) to review the program's compliance with the terms and conditions of its operating certificate, applicable laws and regulations;

(5) to ensure that the design and operation of the program is consistent with and appropriate to the ethnic and cultural background of the resident population;

(6) to ensure that a child or adolescent resident, and where appropriate, his or her family or surrogate family, are an integral part of service planning decisions;

(7) to ensure the development of, approve, and periodically review and revise as appropriate all programmatic and administrative policies and procedures. Such policies and procedures shall include, but are not limited to, the following:

(i) written personnel policies which shall prohibit discrimination on the basis of race, color, creed, disability, sex, sexual orientation, marital status, age, HIV status or national origin;

(ii) written personnel policies which provide for screening of employees through the New York Statewide Central Register of Child Abuse and Maltreatment, verification of employment history, personal references, work record and qualifications, as well as requesting the office to perform criminal history record checks in accordance with Part 550 of this Title;

(iii) written volunteer policies which provide for screening of volunteers through the New York Statewide Central Register of Child Abuse and Maltreatment, verification of employment history, personal references, work history and supervision of volunteers, as well as requesting the office to perform criminal history record checks in accordance with Part 550 of this Title;

(iv) written policies which are consistent with the obligations imposed by titles VI and VII of the Civil Rights Act, Federal Executive Order 11246, article 15 of the Executive Law (Human Rights Law), article 15-a of the Executive Law (Minority and Women Business Enterprises Program), section 504 of the Rehabilitation Act of 1973, the Vietnam Era Veteran's Readjustment Act, the Federal Age Discrimination in Employment Act of 1967, the Federal Equal Pay Act of 1963, and the Federal Americans with Disabilities Act;

(v) written policies and procedures concerning, if necessary, the administration and storage of medication which shall be consistent with applicable Federal and State laws and regulations;

(vi) written policies and procedures governing resident records which ensure confidentiality consistent with the Mental Hygiene Law, including sections 33.13 and 33.16, 45 CFR parts 160 and 164(HIPAA), and other applicable State and Federal laws and regulations, which provide for appropriate retention and resident access of such records;

(vii) written criteria for admission and discharge from the program which shall state that no person shall be excluded from the program on the basis of race, religion, color, sex, sexual orientation, disability, HIV status or national origin. However, nothing in this subparagraph shall be interpreted to prevent a provider from making admission or discharge decisions based upon the functional, clinical and behavioral needs of the applicant which are relevant to its functional program;

(viii) written policies and procedures that will allow family members or guardians to visit the child in the residential program and/or participate in planned recreation activities and outings;

(ix) written policies and procedures regarding the mandatory reporting of child abuse or neglect, reporting procedures and obligations of persons required to report, provisions for taking a youth into protective custody, mandatory reporting of death, immunity from liability, penalties for failure to report, and obligations for the provision of services and procedures necessary to safeguard the life or health of the child or adolescent. Such policies and procedures shall address the requirements for the identification and reporting of abuse or neglect regarding residents or the parents or guardians of residents;

(x) written policies and procedures describing a resident grievance process which ensures the timely review and resolution of residents' or family members' complaints and which provides a process enabling residents or family members to request review by the Office of Mental Health when resolution is not satisfactory;

(xi) written policies and procedures describing a staff supervision plan which identifies the minimum skills/competencies necessary for staff to supervise youth in placement independent of direct supervision; and

(xii) written policies and procedures describing general child supervision practices and individual precautions designed to ensure a safe environment for all residents.

(8) The governing body shall ensure the development of, approve and periodically review and revise a written quality assurance plan for the licensed housing program. Such plan shall include, but not be limited to, the following:

(i) Written policies and procedures for monitoring the operation of the housing program against criteria established in the functional program.

(ii) A written utilization review procedure to monitor the extent to which residents are receiving appropriate services and are being served at an appropriate level of care.

(iii) A written procedure for incident reporting and incident management.

(c) A provider of service shall ensure the timely reporting, investigation, review, monitoring and documentation of incidents pursuant to the Mental Hygiene Law and Part 524 of this Title.

(d) A provider of service shall ensure that no otherwise appropriate resident is denied access to services solely on the basis of multiple diagnoses, a diagnosis of HIV infection, AIDS, or AIDS-related complex, pregnancy, or solely because the youth has any past involvement with substance abuse or the juvenile justice system.

(e) There shall be an emergency evacuation plan and staff shall be knowledgeable about its procedures.

(f) The provider of service shall participate as required with the local governmental unit in local planning processes pursuant to sections 41.05 and 41.16 of the Mental Hygiene Law. At a minimum, such participation shall include:

(1) provision of budgeting and planning data as requested by the local governmental unit;

(2) identification of the population being served by the program;

(3) identification of the geographic area being served by the program;

(4) description of the program's relationship to other providers of service including, but not limited to, a description of all written agreements entered into pursuant to this Part; and

(5) for CREDIT programs, in addition to the provisions of paragraph (4) of this subdivision, a description of specific affiliation agreements with designated Comprehensive Care Center for Eating Disorders (CCCED) providers, which must include referral and admission procedures, as well as procedures for crisis clinical back-up.

(g) In programs which are not operated by State or local government, there shall be an annual audit, pursuant to a format prescribed by the Office of Mental Health, of the financial condition and accounts of the program performed by a certified public accountant who is not a member of the governing body or an employee of the program. Government-operated programs shall comply with applicable laws concerning financial accounts and auditing requirements.

(h) The provider of service shall establish mechanisms which ensure that the cultural and ethnic backgrounds of residents are taken into account such as ethnic representation on the staff and governing body, and inclusion of ethnic appropriate content in service programs.

(i) The provider of service shall provide for the fair compensation of residents who are employed by the provider. Such employment must meet all applicable requirements of Federal and State labor laws. The requirements of this subdivision shall not be applicable to the performance of normal household chores.

(j) The provider shall submit an annual report to the Office of Mental Health. The report shall include annual goals and objectives of the program, progress toward meeting the goals, and feedback from semi-annual consumer evaluations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.7 Functional program

(a) A functional program will be developed and submitted with the provider's application for certification. The functional program shall, at a minimum, include:

(1) a description of the agency mission, admission and discharge criteria and the description of the population to be served;

(2) a description of the program's treatment philosophy including values and objectives specifically addressing the issues of resiliency and recovery in a strength-based, family-driven, trauma-sensitive environment;

(3) a description of the specific service needs of the defined target population;

(4) a description of the existing service system, including, but not limited to, mental health, health, social, education, vocational, and other support services;

(5) a description of the residents' utilization or non-utilization of the existing service system and the rationale for such service use patterns;

(6) a description of the gaps in service to the population to be served and the plan to provide or ensure the provision of such services;

(7) a description of the rehabilitative and treatment service methods used to promote successful functioning and integration of residents into family, community, school, employment and independent living;

(8) a description of the goals and anticipated outcomes of the program, including the anticipated average length of stay for residents;

(9) a description of the provider's role, if any, in providing a crisis bed capacity within the geographical area;

(10) a description of the proposed staffing pattern, including job descriptions and qualifications, number of full-time equivalent employees for each position, the supervisory structure and staffing schedule. Such description shall be in the form of a staffing plan;

(11) a description of the services to be offered to families to strengthen positive relationships between youth and families and promote reintegration into the family, as appropriate, including the utilization of family input and involvement in the treatment planning process; and

(12) a description of the steps to be taken to contact and to work with the youth's community school to assist and support an effective educational/vocational program for the youth.

(b) The functional program shall address the use of all necessary services in relationship to achieving the goals of each individual resident.

(c) The functional program shall serve as a basis for delineating anticipated program outcomes which along with program requirements shall be monitored pursuant to section 594.14 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.8 Admission and discharge criteria

(a) Each program governed pursuant to this Part shall maintain written admission and discharge criteria which are consistent with its goals and objectives and which are subject to the approval of the Office of Mental Health.

(b) The admission criteria must, at a minimum, provide that the youth meet each of the following criteria:

(1) attainment of at least the 5th birthday but not the 18th, provided, however, that in the CREDIT program, the admission criteria must provide that the youth has attained at least the 12th birthday but not the 19th;

(2) a designated mental illness diagnosis which, for purposes of the CREDIT program, must include a diagnosis of an eating disorder, as such term is defined in this Part;

(3) substantial problems in social functioning due to a serious emotional disturbance within the past year;

(4) serious problems in family relationships, peer/social interaction or school performance. In a CREDIT program, serious problems in the family relationship/support system shall include circumstances in which:

(i) the family members and/or support systems demonstrate behaviors that are inconsistent with the goals of treatment, such that treatment at a lower level of care is unlikely to be successful; or

(ii) the family members and/or support systems do not possess the requisite skills to effectively manage the disease such that treatment at a lower level of care is unlikely to be successful;

(5) serious and persistent symptoms of cognitive, affective and personality disorders;

(6) a level of service need which requires multi-agency intervention and involvement; and

(7) in a community residence that is a CREDIT program, admission criteria shall also include documentation that the child demonstrates an inability to be managed at a lower level of care but does not require acute inpatient level of care.

(c) The provider of a teaching family home or community residence that is not a CREDIT program must establish an intake committee to review the applications of children and adolescents referred for admission to the program from the youth's home single point of access process (or similar successor process) and determine the eligibility for admission to such program. The intake committee shall, at a minimum, include appropriate representation from the residential program and other agencies impacting the care and treatment of the child such as, but not limited to, the local governmental unit, social service district, school district, and family and consumer representation.

(d) A referral for admission to a teaching family home or community residence program that is not a CREDIT program shall be submitted to the provider from the youth's home single point of access process (or similar successor process). Each referral must contain the following documents, and all assessments must have occurred within the last 90 days, except for the educational assessment which must have occurred within the last year:

(1) an updated medical report;

(2) a psychosocial assessment;

(3) a psychiatric evaluation;

(4) an educational assessment;

(5) a signed, parental/guardian informed consent form for admission;

(6) a description of the child's current behaviors and significant strengths and problems; and

(7) documentation that potentially less restrictive community, home and/or extended nonresidential services have been reasonably explored and are either not available or have not been successful.

(e) A referral for admission to a community residence that is a CREDIT program shall be received from a Comprehensive Care Center for Eating Disorders, or from the child's primary care physician or mental health provider. All assessments must have occurred within the last 30 days. Each referral must include the following documents:

(1) an updated medical report;

(2) a psychosocial assessment;

(3) a psychiatric evaluation;

(4) an educational assessment;

(5) a signed, parental/guardian informed consent form for admission;

(6) a description of the child's current behaviors and significant strengths and problems;

(7) documentation that potentially less restrictive community, home and/or extended non-residential services have been reasonably explored and are either not available or have not been successful;

(8) nutritional screening for eating disorder behaviors and nutritional status;

(9) psychological testing as needed; and

(10) assessment of the family system when appropriate by direct involvement with the family members.

(f) Prior to placement, each youth referred to a teaching family home or community residence, including a CREDIT program, shall be afforded at least one pre-placement visit to the teaching family home or community residence. Where appropriate, the family shall also be afforded such opportunity.

(g) Determination of eligibility for acceptance in the teaching family home or community residence, including a CREDIT program, must be made, once all intake materials have been received, within 10 working days.

(h) If the child is not accepted into the teaching family home or community residence that is not a CREDIT program, the provider shall send a notice of rejection to the youth's home single point of access committee (or similar successor process entity) and the child or adolescent's parent or guardian, accompanied by an explanation of the rejection and suggestion for other treatment alternatives. If the child is not accepted into a CREDIT program, the CREDIT program will send the notice of rejection to the referral source in a timely manner, but in no event not later than seven days after request has been made.

(i) Each provider shall develop a discharge policy and specific discharge criteria. The discharge policy shall indicate that the provider will begin discharge planning upon a child or adolescent's admission to the program. Although discharge planning shall begin prior to the youth's 18th birthday, the youth may remain in the program for up to one year following the 18th birthday, if clinically appropriate. The discharge plan must set forth the resident's functional levels and family and community supports needed to enable the youth to move home or live independently. Additionally, the discharge plan must identify goals for the youth to work towards which will strengthen his or her success upon discharge.

(j) As part of the discharge planning process, for both planned and unplanned discharges, the provider shall ensure that each child or adolescent and family is linked with the appropriate services needed for the youth to successfully transition into the community or other appropriate alternative. Attempts should be made to ensure that the discharge process allows for gradual transition to the child's discharge living environment.

(k) Teaching family homes and community residences, including CREDIT programs, shall maintain contact with youth and family for up to 90 days after discharge for the purpose of providing support during transition to the discharge living environment.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.9 Residents' rights

(a) The provider of service shall ensure the provision of notices of recipients' rights described in section 527.5 of this Title to each resident and his or her family or significant others. Such notice shall also address residents' right to wear age-appropriate clothing, receive prompt medical attention, and have access to appropriate education.

(b) Each child or adolescent, family or significant other shall be apprised of the residence grievance process which ensures the timely review and resolution of resident's or family's complaints.

(1) The grievance process must ensure an objective review of the issues, timely resolution and adequate documentation.

(2) The name and number of an Office of Mental Health contact person shall be made available to a resident and/or family member whenever a grievance process cannot be resolved to the satisfaction of all parties. Within 14 days, the Office of Mental Health will review the circumstances surrounding the disagreement and make a recommendation concerning a course of action to be taken.

(3) If successful resolution to the grievance cannot be achieved through the process delineated in paragraphs (1) and (2) of this subdivision, the resident and/or family member has a right to legal recourse and must be provided with information regarding where to obtain legal assistance including, but not limited to, mental hygiene legal services. The resident and/or family member should also be informed in writing, that complaints can be made to the Commission on Quality of Care and Advocacy for Persons with Disabilities.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.10 Service planning

(a) Services provided within a teaching family home or community residence, including a CREDIT program, shall be provided in accordance with a service plan developed within four weeks of admission to the program. In the case of a community residence that is a CREDIT program or a crisis residence, the initial service plan must be developed within three days of admission. At the time of admission, an admission note must be prepared and signed by a qualified mental health staff person which, at a minimum, indicates a description of the strengths and needs of the youth, as well as a brief description of the services necessary to meet these needs during the initial period after admission.

(b) Such plan shall be developed by the staff of the program, resident and family and/or any collateral identified for participation in planning, as appropriate, including the parents or guardian of minor residents. The service plan must be reviewed and signed by a qualified mental health staff person. The service plan must be a mutually agreed upon course of action which, at a minimum, identifies the following:

(1) the youth's personal statement of his/her goals;

(2) identification of the youth's collaterals;

(3) statement of the youth's needs and strengths and a description of the skills needed to return home or to the community;

(4) statement of service goals and objectives;

(5) identification of the services and supports to be provided;

(6) proposed time periods; and

(7) strategies to coordinate services with other providers.

(c) Progress notes shall be recorded by authorized program staff members. Such notes shall be prepared at least monthly for all programs other than crisis residence and CREDIT programs, and shall indicate the type of services which have been provided, any significant events which have occurred, progress towards achieving goals of the service plan and, if appropriate, any recommendations for changes to the goals and objectives of the service plan. For teaching family programs, these notes must be based upon daily logs maintained by teaching parents which are reviewed weekly by program staff. For the crisis residence and CREDIT programs, progress notes shall be completed weekly.

(d) The individualized service plan shall be reviewed at least every three months for all programs other than the crisis residence and CREDIT programs with the initial review occurring three months from the date of admission. For crisis residence and CREDIT programs, the service plan must be reviewed weekly. For all programs, review shall include participation of staff involved in the provision of services to the resident, the resident and/or, if appropriate, the resident's family or other collateral. Such review shall include the following:

(1) assessment of the progress of the resident in regard to mutually agreed upon goals and objectives in the service plan;

(2) recommendations for adjustment of goals and objectives, time periods for achievement, intervention strategies or the initiation of the discharge process; and

(3) review of the service plan and signed approval by a qualified mental health staff person.

(e) In addition, programs other than crisis residences licensed under this Part must comply with the provisions of section 593.6 of this Title, except that CREDIT programs shall not be required to comply with the provisions of section 593.6(b) through (g) of this Title.

(f) Services provided within a crisis residence program or CREDIT program shall be provided in accordance with a service plan developed within three days of admission to the program. At the time of admission, an admission note must be prepared indicating source of referral, rationale for admission, presenting problem and initial treatment needs of the resident.

(1) Progress notes which relate to the goals and objectives of the service plan shall be signed by the staff member who provided the service or by one participating staff member when several staff members have had a significant interaction with the resident. Progress notes shall be written at least weekly.

(2) Service plan reviews for crisis residence programs shall be scheduled at least weekly.

(3) Information necessary to complete and/or update the case record and service plan may be obtained from program staff, the youth and his/her family, referral source staff, and/or with the parent or custodian's consent, outside medical and psychiatric staff including the resident's most recent mental health service provider. Information from outside sources must be secured within three working days of the resident's admission and must have been obtained within the previous three months. If outside information is not available, crisis residence staff must conduct and/or arrange to have conducted the required assessments.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.11 Program requirements for licensed housing programs (excluding crisis residence programs)

(a) A licensed housing program shall be designed to provide a family-like and therapeutic environment for children and adolescents with serious emotional disturbance. A licensed housing program shall be responsible for providing services in a safe environment to the youth which will allow for the eventual return to the family or, if appropriate, to acquire the skills and resources for independent living.

(b) A licensed housing program shall provide the following developmentally and age-appropriate services:

(1) behavior support;

(2) case management;

(3) counseling;

(4) daily living skills training;

(5) educational/vocational support services;

(6) family support services;

(7) health services;

(8) independent living skills training;

(9) medication management and training;

(10) medication monitoring;

(11) respite;

(12) room and board; and

(13) socialization.

(c) The licensed housing program shall develop a plan for assuring continuity and integration of care within the mental health system, other systems of care, and the family, whenever appropriate. Such plan shall be supported by written agreements, as appropriate, with other providers of service. The plan shall be subject to approval by the Office of Mental Health and, at a minimum, shall address the following areas:

(1) emergency medical and psychiatric services;

(2) inpatient programs;

(3) outpatient programs;

(4) local social services;

(5) alcohol and substance abuse treatment and education programs;

(6) general health care providers;

(7) transportation;

(8) schools;

(9) community recreation;

(10) juvenile justice system; and

(11) vocational programs.

(d) A licensed housing program shall continuously employ an adequate number of professional and direct care staff to carry out its goals and objectives as well as to ensure the continuous provision of sufficient supervision. Each licensed housing program shall submit a staffing plan which includes at least one full-time employee who is a registered nurse for each eight-bed community residence and for each 12-bed teaching facility home and the qualifications and duties of each of the other staff positions by title.

(e) Staff of a licensed housing program shall be available to assist in emergencies on at least an on-call basis at all times.

(f) Each teaching family home program shall be composed of no more than five teaching family homes. Each program shall assign an appropriately trained, full-time teaching family couple and an assistant to each home.

(g) Each teaching family home program shall run regular consultative and training meetings for teaching parents and child care staff. Support groups and parent training shall also be offered to families.

(h) Each community residence, including a CREDIT program, shall employ at least two full-time equivalent direct care staff on duty during peak times which include early mornings, after school, early evenings, weekends and holidays, for a six-bed program. At least three full-time equivalent direct care staff shall be on duty during such times for an eight-bed program.

(i) Each community residence, including a CREDIT program, shall assign at least two direct care staff for overnight coverage to ensure that at least one staff person is on duty, (and is therefore awake) at all times.

(j) Additional requirements for community residences that are CREDIT programs.

(1) A community residence for eating disorder integrated treatment program (CREDIT program) is a community residence program for children and adolescents who have been diagnosed with an eating disorder as defined in Section 2799-e of the Public Health Law and whose individual treatment issues preclude family settings or other less restrictive alternatives.

(2) In addition to the requirements for licensed housing programs identified in this section, a community residence that qualifies as a CREDIT program must be affiliated with an entity designated by the New York State Department of Health as a Comprehensive Care Center for Eating Disorders (CCCED).

(i) CREDIT programs shall admit only children or adolescents who have been diagnosed with an eating disorder, and who have been referred by a CCCED, or by the child's primary care physician, or mental health provider.

(ii) The CREDIT program affiliation with the CCCED shall be documented pursuant to written agreements with the CCCED or the providers of which it is comprised. Such agreements shall be subject to approval by the Office of Mental Health, shall provide for continuity and integration of care with the CCCED and shall require, at a minimum:

(a) the performance of a psychiatric assessment;

(b) the development of a service plan which is integrated with other providers in the CCCED and integrated with the clinical care being provided;

(d) the supervision of meal, bathroom and exercise time;

(e) family participation, as appropriate; and

(f) coordination of the child's educational needs with his or her home school district.

(iii) A CREDIT program shall have sufficient staff to meet the special needs of children and adolescents residing in a community residence who have been diagnosed with an eating disorder.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.12 Crisis residence program

(a) A crisis residence program provides a short-term (1-21 day), trauma-sensitive, safe and therapeutic living environment, and crisis support, to children and adolescents with serious emotional disturbances, their families and residential service providers. The goal of the program is to stabilize the crisis situation and support the family or service provider's efforts to maintain the child in his or her current residence and to decrease the inappropriate use of an inpatient facility or other out-of-home placements.

(b) A crisis residence shall provide the following services:

(1) crisis stabilization;

(2) behavior support;

(3) case management;

(4) counseling;

(5) daily living skills training;

(6) education/vocation support services;

(7) health services;

(8) medication management and training;

(9) medication monitoring;

(10) room and board; and

(11) socialization.

(c) The crisis residence program shall develop a plan for assuring continuity and integration of care within the mental health system and other systems of care and the family, whenever appropriate. Such plan shall be supported by written agreements, as appropriate, with other providers of service. The plan shall be subject to approval by the Office of Mental Health and, at a minimum, shall address the following areas:

(1) emergency medical and psychiatric services;

(2) inpatient programs;

(3) outpatient programs;

(4) local social services;

(5) alcohol and substance abuse treatment and education programs;

(6) general health care providers;

(7) transportation;

(8) schools;

(9) community recreation;

(10) juvenile justice system; and

(11) vocational programs.

(d) A crisis residence program shall continuously employ an adequate number of professional and direct care staff to carry out its goals and objectives as well as to ensure the continuous provision of sufficient supervision. Each crisis residence program shall submit a staffing plan which includes the qualifications and duties of each staff position by title.

(e) A crisis residence program shall have at least two FTE direct care staff on duty per six-bed program during peak times which include, early mornings, after school, early evenings, weekends and holidays. At least three FTE direct care staff shall be on duty during such times for an eight-bed program.

(f) A crisis residence program shall assign at least two direct care staff for overnight coverage. At least one staff must be awake during this time.

(g) A crisis residence program shall employ at least one FTE registered nurse.

(h) Staff of a crisis residence program shall be available to assist in emergencies on at least an on-call basis at all times.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.13 Training

(a) Each licensed housing program shall develop an orientation and ongoing training program which, at a minimum, addresses the following areas:

(1) ensuring trauma-sensitive safe environments for all youth in residence;

(2) child and adolescent mental health issues;

(3) child and adolescent developmental issues;

(4) medication management;

(5) proactive positive intervention techniques;

(6) strength-based skills training/crisis intervention;

(7) cultural competence, including assessment of issues and effects on treatment;

(8) suicidal behaviors, sexual and physical abuse, chemical abuse, anger control and runaway behavior;

(9) youth advocacy;

(10) work with families in the areas of providing support, advocacy and the development of partnerships;

(11) human rights; and

(12) incident reporting.

(b) Each staff member who interacts with the youth and families of a teaching family home program shall satisfactorily complete a minimum preservice training pursuant to training curriculum approved by the Office of Mental Health.

(c) Each staff member of a teaching family home who supervises staff or takes part in staff, youth, or program evaluation must satisfactorily complete the Office of Mental Health approved preservice, consultation, and evaluation curriculum.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.14 Quality assurance

(a) Each provider of service shall develop a quality assurance plan. The plan shall include, but is not limited to:

(1) Each licensed housing program shall have a written utilization review procedure which includes but is not limited to, review of:

(i) appropriateness for admission to and continued stay in the licensed housing program;

(ii) appropriateness of the services provided by the licensed housing program; and

(iii) readiness for referral and transfer of youth who no longer meet criteria for the licensed housing program must be included.

(2) Utilization review must be carried out by staff who do not have primary responsibility for the resident under review.

(3) Each licensed housing programs shall have an internal incident reporting, investigation and management process. Licensed housing programs shall comply with Mental Hygiene Law and Part 524 of this Title which governs incident reporting by licensed mental health programs. The quality assurance plan shall contain written procedures for carrying out incident management and reporting.

(4) Each licensed housing program shall have procedures for internal monitoring of program performance. The results of this internal monitoring shall be used to identify problems in client care and opportunities to improve care and shall be regularly reviewed and acted on by the governing body.

(b) The Office of Mental Health shall have responsibility for monitoring the quality of licensed housing programs and services and will monitor licensed housing programs against the criteria as stated in the functional program description and in accordance with this Part.

(1) External program monitoring shall be carried out by the Office of Mental Health and/or its authorized agents. The Office of Mental Health will review program operations, quality assurance activities and the individual records of residents during periodic certification visits.

(2) External utilization review shall be carried out as necessary by the Office of Mental Health or other agents against the criteria contained in the licensed housing provider's functional description.

(3) The Office of Mental Health will conduct external review of licensed housing programs as necessary based on patterns or trends in reported incidents or on the occurrence of an individual incident of extreme gravity.

(c) Each licensed housing program shall have an Office of Mental Health approved consumer evaluation process, in which youth, and their parents, as well as other relevant individuals involved with the youth shall have an opportunity to give feedback about the program in a confidential manner. The information from this consumer process shall be summarized annually and submitted to the Office of Mental Health, the youth, their parents and all staff in the program. The confidentiality of residents, families and other impacted parties shall be protected.

(d) Upon a determination that a provider of service is in violation of this Part or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, standard, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate or impose fines in accordance withe Mental Hygiene Law, section 31.16 and Parts 53 and 503 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.15 Case records and reports

(a) There shall be a complete case record maintained for each resident. Such case record shall be maintained in accordance with recognized and acceptable principles of recordkeeping as follows:

(1) case record entries shall be in nonerasable ink or typewriter;

(2) case records shall be legible;

(3) case records shall be periodically reviewed for quality and completeness; and

(4) case records shall be dated and signed by appropriate staff.

(b) The case record shall be available to all staff of the program who are participating in the provision of services to the resident and shall include the following information:

(1) resident identifying information and history;

(2) preadmission screening notes, as appropriate;

(3) diagnosis;

(4) assessment of the resident's psychiatric, physical, social and educational/vocational needs;

(5) reports of appropriate and necessary mental and physical diagnostic exams, assessments, tests and consultations;

(6) the individualized written service plan;

(7) dated progress notes which relate to goals and objectives of service provision in accordance with periodic reviews;

(8) notes which relate to significant events and/or untoward incidents;

(9) periodic service plan reviews;

(10) discharge planning summary;

(11) referrals to other programs and services;

(12) consent forms;

(13) discharge plan; and

(14) for CREDIT programs, the case record shall also include a Wellness Self Management Plan specifying techniques for maintaining a positive body image.

(c) Statistical information shall be prepared and maintained as may be necessary for the effective operation of the program, and as may be required by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.16 Premises

(a) Safety.

(1) Each residence housing children and adolescents shall be safe and suitable for the comfort and care of the residents. They shall be maintained in a good state of repair and sanitation.

(2) Each residence housing children and adolescents shall observe the following precautions:

(i) A sufficient number of fire extinguishers, approved by the Underwriters Laboratories, shall be installed in accessible places on each floor. Fire extinguishers shall be tested and recharged in accordance with manufacturers' recommendations.

(ii) Staff shall be trained in the use of firefighting equipment, and in the means of rapidly evacuating the building.

(iii) The following items are prohibited:

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

(b) portable propane devices for heating, cooking, or lighting; and

(iv) The following items are allowed only with the explicit approval of the Office of Mental Health and with a description of the device in detail, including its safety features, potential hazards and proposed procedures for maintenance and operation:

(a) electric space heaters;

(b) wood or coal burning stoves for heating; and

(3) Each type of residence housing children and adolescents shall conform to the appropriate section of the most current recognized edition of the National Fire Protection Association (NFPA) 101 Life Safety Code (LSC) as noted below. Said codes are published by the National Fire Protection Association, One Batterymarch Park, Quincy, MA 02269 and are available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231 and the Office of Mental Health, Bureau of Inspection and Certification, 44 Holland Avenue, Albany, NY 12229.

(i) Teaching family homes and community residences shall meet the requirements of the appropriate chapter LSC for one- and two-family dwellings.

(a) Smoke detectors are required outside of each sleeping area in the immediate vicinity of the bedrooms and on each additional story of the living unit including basements, and smoke or heat detectors in those areas separated by a door from the above required detectors.

(b) With the approval of the Office of Mental Health, detectors may be battery-powered, provided that they emit a distinctive trouble signal before the battery is incapable of operating the device.

(c) Tests or inspections, as recommended by the manufacturer, shall be made not less than once a month for other than battery-powered detectors and not less than once a week for battery-powered detectors. A record of these tests shall be maintained for review.

(ii) Crisis residences for children and adolescents shall conform to the requirements of the appropriate chapter(s) of LSC for new or existing residential board and care occupancies as appropriate. In addition:

(b) Tests or inspections, as recommended by the manufacturer, shall be made no less than once a month for other than battery-powered detectors and not less than once a week for battery-powered detectors. A record of these tests shall be maintained for review.

(c) An automatic sprinkler system complying with NFPA 13D, Standard for the Installation of Sprinkler Systems in One- and Two-Family Dwellings, is required. Said codes are published by the National Fire Protection Association, One Batterymarch Park, Quincy, MA 02269 and are available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231 and the Office of Mental Health, Bureau of Inspection and Certification, 44 Holland Avenue, Albany, NY 12229.

(4) Each type of residence housing children and adolescents shall provide carbon monoxide detectors, as per the Residential Code of New York State, the Fire Code of New York State, subdivision 5-a of section 378 of the New York Executive Law ("Amanda's Law") and Local Law No. 7 for residences in New York City, as applicable.

(i) Carbon monoxide detectors shall be installed in locations as required by applicable law and according to manufacturer's directions and specifications.

(ii) Carbon monoxide detectors shall be battery operated, plug-in type or hardwired, in accordance with applicable law.

(5) Residences must possess a valid certificate of occupancy or other documentation, which, in the opinion of the Office of Mental Health, satisfies the intent of a certificate of occupancy.

(b) Design and space requirements.

(1) Single bedrooms for teaching family homes, community residences and crisis residences shall be at least 90 square feet (exclusive of closets) and a multiple bedroom shall provide at least 75 square feet per resident.

(2) No more than two persons shall share a bedroom.

(3) All bedrooms must receive natural light from an aggregate window area equal to at least 10 percent of the floor area of the bedroom and natural ventilation from ventilating openings having free openable area of at least five percent of the bedroom floor area.

(4) There shall be a minimum of one toilet and one lavatory for each five residents and family members, and a minimum of one tub or shower for each eight residents and family members or part thereof.

(5) In addition to bedroom space, at least 55 square feet of additional support space shall be provided for each resident. Support space may include living rooms, dining rooms, lounge areas, kitchens, and other such spaces as are accessible to residents and used in program activities. Such spaces shall be apportioned into at least two distinct areas. Living, dining and recreational areas shall be arranged so as to provide a family-like environment.

(6) Equipment shall include:

(i) suitable, comfortable, single beds and an adequate supply of clean linen. Cots shall not be used. High hospital-type beds shall not be used except for physically handicapped persons requiring them;

(ii) a chair and storage facility for personal articles for each resident; and

(iii) an individual clothes closet or wardrobe for each resident.

(1) Design and construction of new buildings and the alteration of existing buildings shall be in accordance with the requirements of Part 551 of this Title.

(2) Whenever one or more persons with physical disabilities reside in a residential program, the program activities shall, to the maximum extent feasible, occur in areas of the building which are accessible to such persons.

(d) Waiver from the provisions of this section may be granted by the Office of Mental Health upon its determination that approval of such a waiver will not adversely affect the habitability or safety of the program. Such determination will be based upon a review of the following criteria:

(1) compensatory or other existing features which have the effect of reducing the impact of the proposed waiver;

(2) the service needs of the population or individual served;

(3) the operating history of the program and/or sponsoring agency requesting the waiver; or

(4) the cost of meeting the requirements.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 594.17 Determination of capacity of self-preservation

(a) The evacuation capacity of residents is a function of both the ability of the residents to evacuate and the assistance provided by staff. Determination of satisfactory ability to evacuate should be made prior to admission to a housing program. Such a determination may be reached by review of the applicant's history and a face-to-face interview which shows a capacity to evacuate equivalent to that of the general public. When uncertainty exists a time drill may be used for a more objective measurement.

(b) Subsequent to admission, a program of timed drills should be used to regularly evaluate the level of evacuation capability of program residents. Translation of drill times to evacuation capability may be determined as (1) three minutes or less, prompt; (2) over three minutes but not in excess of 13 minutes, slow. Evacuation capability is based on the time of day or night when evacuation of the facility would be the most difficult (i.e., sleeping residents or fewer staff present). Residents needing assistance in evacuating should be assisted by staff to the extent that assistance would be available at the time of day or night in an actual emergency.

(c) Fire exit drills shall be conducted at least monthly. Some drills may be announced in advance to the residents. The drills shall involve the actual evacuation of all residents to an assembly point as specified in the emergency plan and shall provide residents with experience in exiting through all exits. Actual exiting from windows shall not be necessary to meet the requirements of this section. Opening the window and signaling for help shall be an acceptable alternative. Records should indicate the time to evacuate, date and times of day, location of simulated fire origin, the escape paths used and comments relating to residents who did not evacuate within the required time.

(d) Residents and prospective residents shall only reside in or be admitted to a type of housing program appropriate to the youths' evacuation capability.

(1) If a resident or prospective resident is clearly capable of prompt evacuation, that youth may be admitted to or remain in any housing program of a type appropriate to his or her functional level.

(2) If a resident fails to demonstrate a capability for prompt evacuation during a fire drill, the matter should be completely documented in the fire drill log and in the resident's record. Immediate steps should be taken to relocate the resident to a location within the residence which will allow for easier egress for such time as is necessary until another fire drill can be conducted (no more than 14 days) and the resident's behavior observed again.

(3) If any resident or prospective resident would be excluded from a housing program because of inability to evacuate within the time limits above, an evaluation shall be conducted as described in the most current recognized edition of the National Fire Protection Association 101A, Alternative Approaches to Life Safety. Said codes are published by the National Fire Protection Association, One Batterymarch Park, Quincy, MA 02269 and are available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231 and the Office of Mental Health, Bureau of Inspection and Certification, 44 Holland Avenue, Albany, NY 12229. If the resultant E-score yields an evacuation difficulty level of prompt, the applicant or resident shall not be excluded for failure to evacuate within the required time limit. If the resultant E-score yields an evacuation difficulty level of slow, the applicant or resident shall not be excluded solely for failure to evacuate within the required time frame from a facility that is constructed to meet the slow evacuator standards of the current recognized edition of the Life Safety Code.

Part 595 Operation Of Residential Programs For Adults

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.1 Background and intent

(a) The purpose of residential programs for individuals diagnosed with a severe and persistent mental illness is to provide residential services which support and assist individuals with their goal of integration into the community. Residential programs shall have a rehabilitative focus. Residential programs shall be responsible for engaging a resident in rehabilitative services consistent with the individual's desire, tolerance and capacity to participate in such services.

(b) The rehabilitative focus of a residential program provides for improved resident independence, choice and outcomes. This is fostered by the development and implementation of an individualized written service plan which shall be based upon psychiatric rehabilitation principles of participation and individual resident choice. An individualized written service plan shall be developed with the resident.

(c) The purpose of residential programs is to provide an array of rehabilitative and supportive services. Such services may focus upon intensive, goal-oriented intervention, within a structured program setting, to address issues identified by and specific to a resident's needs regarding community integration or goal oriented interventions which focus on improving or maintaining resident skills that enable a resident to remain living in community housing.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.2 Legal base

(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 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 with mental illness pursuant to an operating certificate.

(b) Sections 31.05, 31.07, 31.09, 31.13 and 31.19 of the Mental Hygiene Law authorize the commissioner or his or her representative to examine and inspect programs to determine their suitability and proper operation. Sections 31.16 and 31.17 of the Mental Hygiene Law authorize the commissioner to suspend, revoke or limit any operating certificate.

(c) Section 31.11 of the Mental Hygiene Law requires every holder of an operating certificate to assist the Office of Mental Health in carrying out its regulatory functions by cooperating with the commissioner in any inspection or investigation, permitting the commissioner to inspect its facility, books and records and making such reports, uniform or otherwise as are required by the commissioner.

(d) Section 31.25 of the Mental Hygiene Law requires that the commissioner establish, pursuant to regulation, licensed residential providers of treatment and/or supportive services to individuals with eating disorders.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.3 Applicability

(a) This Part applies to any provider of services which operates or proposes to operate a residential program for persons with mental illness and is licensed pursuant to article 31 of the Mental Hygiene Law, including the Community Residence for Eating Disorder Integrated Treatment ("CREDIT") Program.

(b) This Part does not apply to any provider of services which operates or proposes to operate a residential program for children or adolescents with serious emotional disturbances.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.4 Definitions

For purposes of this Part:

(a) General definitions.

(1) Admission criteria are those factors which are identified by the provider of service for use in determining an individual's eligibility for admission to a residential services program.

(2) Clinical assessment means an evaluation which shall include, at a minimum, a patient history, mental status determination, diagnosis and identification of individual treatment needs and recommendations.

(3) Community Residence for Eating Disorder Integrated Treatment Program (CREDIT Program) for adults is a subclass of community residence for individuals over the age of 18 who have been diagnosed with an eating disorder as defined in section 2799-e of the Public Health Law, whose individual treatment issues preclude family settings or other less restrictive alternatives.

(4) Designated mental illness diagnosis means that an individual is 18 years of age or older and currently meets the criteria for a psychiatric diagnosis in the most current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), or has a diagnosis of an eating disorder as defined in this section, but excluding alcohol or drug disorders, dementias and other disorders due to general medical conditions, developmental disabilities or social conditions (V-codes). ICD-9-CM categories and codes that do not have an equivalent in DSM-IV are also not included as designated mental illness diagnosis.

(5) Discharge planning means the process of planning for termination of services from a residential program through the identification of residential and other resources and supports needed for the transition of the resident to another residential option and making the necessary referrals, including linkages for treatment, rehabilitative and support services.

(6) Eating disorder means an eating disorder as such term is defined in section 2799-e of the Public Health Law and shall include, but not be limited to, conditions such as anorexia nervosa, bulimia and binge eating disorder, identified as such in the most current edition of the International Classification of Disease or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders, or other medical and mental health diagnostic references generally accepted for standard use by the medical and mental health fields.

(7) Extended impairment in functioning means an individual has met subparagraph (i) or (ii) of this paragraph:

(i) experienced two of the following four functional limitations due to a designated mental illness over the past 12 months on a continuous or intermittent basis:

(a) marked difficulties in self-care such as personal hygiene, diet, clothing, avoiding injuries, securing health care or complying with medical advice;

(b) marked restrictions of activities of daily living such as maintaining a residence, using transportation, day-to-day money management or accessing community service;

(c) marked difficulties in maintaining social functioning such as establishing and maintaining social relationships, interpersonal interactions with primary partners, children and other family members, friends, or neighbors, social skills, compliance with social norms or appropriate use of leisure time;

(d) frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner in work, home or school setting. Individuals may exhibit limitations in these areas when they repeatedly are unable to complete simple tasks within an established time period, make frequent errors in tasks, or require assistance in the completion of tasks; or

(ii) met criteria for rating of 50 or less on the Global Assessment of Functioning Scale (Axis V of DSM-IV) due to a designated mental illness over the past 12 months on a continuous or intermittent basis.

(8) On-site services means those services which are provided either on a 24- hour basis in a congregate or service enriched single room occupancy program or through periodic visits and on an as-needed basis within an apartment program.

(9) Provider of service means the entity which is responsible for the operation of a program. Such entity may be an individual partnership, association or corporation.

(10) Qualified mental health staff person means:

(i) a physician who is currently licensed as a physician by the New York State Education Department;

(ii) a psychologist who is currently licensed as a psychologist by the New York State Education Department;

(iv) a registered nurse who is currently licensed as a registered professional nurse by the New York State Education Department;

(v) a creative arts therapist who is currently licensed as a creative arts therapist by the New York State Education Department;

(vi) a marriage and family therapist who is currently licensed as a marriage and family therapist by the New York State Education Department;

(vii) a mental health counselor who is currently licensed as a mental health counselor by the New York State Education Department;

(viii) a psychoanalyst who is currently licensed as a psychoanalyst by the New York State Education Department;

(ix) a nurse practitioner who is currently certified as a nurse practitioner by the New York State Education Department;

(x) an individual having education, experience and demonstrated competence, as defined below:

(a) a master's or bachelor's degree in a human services related field;

(b) an associate's degree in a human services related field and three years experience in human services;

(xi) for purposes of a CREDIT program, a registered dietitian who is currently licensed by the New York State Education Department; or

(xii) other professional disciplines which receive the written approval of the Office of Mental Health.

(11) Reliance on psychiatric treatment, rehabilitation and supports means that a documented history shows that the individual, at some prior time, met the threshold for extended impairment in functioning, but symptoms and/or functioning problems are currently attenuated by medication or psychiatric rehabilitation and supports. Medication refers to psychotropic medications which may control certain primary manifestations of mental disorder, but may or may not affect functional limitations imposed by the mental disorder. Psychiatric rehabilitation and supports refers to a highly structured and supportive setting which may greatly reduce the demands placed on the individual and, thereby, minimize overt symptoms and signs of the underlying mental disorder.

(12) Site means the type of structure in which a residential program is located. Structural types are defined to delineate differences in premises, capacity and safety requirements and may include:

(i) Apartment which means a unit organized as a self-contained entity requiring staff support appropriate to the needs of the residents.

(ii) Congregate which means a program which is a group living design, requiring staff on-site, 24 hours per day.

(iii) Service enriched single room occupancy which means a program providing support services for persons who require assistance to improve or maintain their daily living and socialization skills, in residences with private living units and supportive services available on site. Such programs provide 24 hour on-site staff coverage and are designed to enable residents to live as independently as possible in stable community-based housing.

(13) Support residential program means a residential program which provides supportive services designed to improve or maintain an individual's ability to live as independently as possible and eventually access generic housing. For an individual who is not ready for full participation in services and activities, there may be an extended period of engagement consistent with the individual's desire, tolerance and capacity to participate in such services.

(14) Treatment residential program means a rehabilitation-oriented residential program which focuses upon interventions necessary to address an individual's specific functional and behavior deficits which must be resolved in order to access generic housing. The engagement of an individual in services and activities shall be consistent with the individual's desire, tolerance and capacity to participate in such initiatives.

(15) As used in this Part to describe the duties or obligations of the provider of service, the word ensure shall not affect the standard of liability in damages of a provider of service beyond the standard set forth in statutory and/or case law applicable in this State.

(b) Service definitions.

(1) Assertiveness/self-advocacy training means training which is designed to promote the individual's ability to assess his or her needs to make a life status change and to increase self awareness about his or her values and preferences. Training will also increase an individual's ability to respond to medical, safety and other personal problems. Activities are also intended to improve communication skills and facilitate appropriate interpersonal behavior.

(2) Community integration services/resource development means activities which are designed to help individuals identify skills and community supports necessary for specific environments, assess their skills, strengths and deficits in relation to environmental demands, assess available resources, and develop a natural support system by accessing social, educational and recreational opportunities.

(5) Medication management and training means training regarding the storage, monitoring, recordkeeping and supervision associated with the self-administration of medication. This does not include prescribing, but does include a certain degree of reviewing the appropriateness of the residents' existing regimen with his or her physician. Activities which focus on educating residents about the role and effects of medication in treating symptoms of mental illness and training in the skill of self-medication are also included.

(8) Skill development services means activities which assist clients to gain and utilize the skills necessary to undertake employment or pursue educational opportunities. This may include skills related to securing appropriate clothing, scheduling, work related symptom management, and work readiness training.

(9) Socialization means activities which are intended to diminish tendencies toward isolation and withdrawal by assisting residents in the acquisition or development of social and interpersonal skills. It is an activity meant to improve or maintain a resident's capacity for social involvement by providing opportunities for application of social skills. This occurs through resident and staff interaction in the program and through exposure with staff to opportunities in the community. Modalities used in socialization include individual and group counseling and behavior intervention.

(11) Symptom management for the purpose of this Part, means activities which are intended to achieve a maximum reduction of psychiatric symptoms and increased functioning. This includes the ongoing monitoring of residents' mental illness symptoms and response to treatment, interventions designed to help residents manage their symptoms and assisting residents to develop coping strategies to deal with internal and external stressors. Activities range from providing guidance around everyday life situations to addressing acute emotional distress through crisis management and behavior intervention techniques.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.5 Certification

(a) An operating certificate, valid for a period not to exceed three years, will be issued to residential programs which comply with the requirements stated in this Part.

(b) No more than 48 congregate beds will be located on the same premises. Service enriched single room occupancy programs shall not exceed 100 beds.

(c) Pursuant to Part 551 of this Title, applications for new operating certificates shall be submitted to the Office of Mental Health on required forms in accordance with the instructions therein. The application shall state the physical setting (congregate, apartment or service enriched single room occupancy) of the residential program and shall include a functional program which describes in detail the required information as prescribed pursuant to section 595.7 of this Part. A single application for each program shall be submitted.

(d) Renewal applications shall be submitted to the Office of Mental Health on required forms in accordance with the instruction therein.

(e) The current operating certificate shall be available to be shown to anyone upon request.

(f) The certified capacity of the residential program shall not be exceeded at any time.

(g) An operating certificate shall remain the property of the Office of Mental Health. An expired, invalidated, revoked or terminated certificate shall be returned to the Office of Mental Health.

(h) The prior approval review (PAR) procedures in accordance with Part 551 of this Title shall be required of a provider of services that wishes to:

(1) change the physical location of the facility, or utilize additional physical locations, premises or parts of premises;

(2) significantly change the number and types of staff;

(3) initiate major changes in program, including, but not limited to, changes in the criteria for admission or residency termination of residents, or changes in the target population;

(4) change the resident capacity of the program; and

(5) purchase, change ownership, or alter the premises of the program.

(i) The certificate holder shall notify the Office of Mental Health when he or she becomes aware that alterations are planned in a leased building in which the facility is located which affect or could affect the usability of any part of the facility or limit program accessibility by persons with physical disabilities.

(j) Suspension, revocation or limitation of the operating certificate.

(1) The commissioner may revoke, suspend or limit the operating certificate upon the finding that a residential program has failed to comply with the terms of any operating certificate or with the provisions of any applicable statute, rule or regulation. The certificate holder shall be given notice and an opportunity to be heard prior to any such action.

(2) Pending a determination pursuant to paragraph (1) of this subdivision, the commissioner may, upon written notice to the certificate holder, suspend the certificate for not more than 30 days upon the finding that the continued operation of the residential program presents an immediate danger to the health and welfare of any of the persons residing therein.

(k) The certificate holder shall notify the Office of Mental Health of any intention to terminate voluntarily the operation of the residential program.

(1) This notice of intention to terminate voluntarily shall include a statement of the actions which will be taken to assure appropriate referral of persons in residence, preserve the confidentiality of records and to settle financial accounts according to pre-existing individual agreements.

(2) This notice shall be submitted at least 90 days prior to termination of operation.

(l) Catastrophic termination of operation. If through catastrophe such as, but not limited to, fire, flood or earthquake, a residential program is unable to operate as certified, the governing body shall be responsible for providing emergency accommodations and continuing support to all residents until such time as the residential program can be made habitable or alternate stable living accommodations can be found.

(m) No operating certificate is transferable.

(n) The certificate holder shall cooperate with the Office of Mental Health during a review or inspection of the residential program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.6 Organization and administration

(a) The provider of service shall identify a governing body which shall have overall responsibility for the operation of the program. The governing body may delegate responsibility for the day-to-day management of the program to appropriate staff pursuant to an organizational plan approved by the Office of Mental Health. No individual shall serve as both member of the governing body and of the paid staff of the program without prior approval of the Office of Mental Health. The owner(s) may serve as the governing body for a proprietary residential program.

(b) The governing body shall establish mechanisms for the participation of current or former recipients of mental health services and family members of recipients of mental health services on the governing body.

(c) The governing body must ensure that its membership reflects the ethnic and cultural diversity in which the residential program is located. It must also effect an appropriate mechanism(s) to facilitate the integration of the program into the community.

(d) The governing body shall be responsible for the following duties:

(1) to meet at least four times a year;

(2) to review, approve and maintain minutes of all official meetings;

(3) to develop an organizational plan which indicates lines of accountability and the qualifications required for staff positions. Such plan may include the delegation of the responsibility for the day-to-day management of the program to an individual who is qualified by training and experience to supervise;

(4) to review the program's compliance with the terms and conditions of its operating certificate, applicable laws and regulations;

(5) to ensure the existence of a residents' council or other appropriate mechanism to provide participation into the formulation of house rules and other matters which affect the operation of the residence;

(6) to ensure that the design and operation of the program is consistent with and appropriate to the ethnic and cultural background of the resident population;

(i) written personnel policies which shall prohibit discrimination on the basis of race, color, creed, disability, sex, sexual orientation, marital status, age, HIV status, military status, genetic predisposition or carrier status or national origin;

(ii) written policies which shall provide for verification of employment history, personal references, work record and qualifications, as well as requesting the office to perform criminal history record checks in accordance with Part 550 of this Title;

(iii) written volunteer policies which shall provide for screening of volunteers, verification of employment history, personal references, work history, and supervision of volunteers, as well as requesting the office to perform criminal history record checks in accordance with Part 550 of this Title;

(iv) written policies that are consistent with the obligations imposed by titles VI and VII of the Civil Rights Act, Federal Executive Order 11246, article 15 of the Executive Law (Human Rights Law), article 15-A of the Executive Law (Minority and Women Business Enterprises Program), section 504 of the Rehabilitation Act of 1973, the Vietnam Era Veteran's Readjustment Act, the Federal Age Discrimination in Employment Act of 1967, the Federal Equal Pay Act of 1963, and the Federal Americans with Disabilities Act;

(v) written policies and procedures concerning, if necessary, the supervision of self administration and storage of medication which shall be consistent with applicable Federal and State laws and regulations;

(vi) written policies and procedures governing resident records which ensure confidentiality consistent with the Mental Hygiene Law, including sections 33.13 and 33.16, 45 CFR parts 160 and 164 (HIPAA), and other applicable State and Federal laws and regulations, which provide for appropriate retention and resident access of such records;

(vii) written criteria for admission and discharge to the program, which shall state: that no person shall be excluded from the residential program on the basis of race, religion, color, age, sex, sexual orientation, physical disability, HIV status or national origin. However, nothing in this subparagraph shall be interpreted to prevent a residential program from making admission or discharge decisions based upon the functional, clinical and behavioral needs of the applicant, which are relevant to its functional program; and

(viii) if a program serves parents with children or adolescents, written policies and procedures regarding the mandatory reporting of child abuse or neglect, reporting procedures and obligations of persons required to report, provisions for taking a child or adolescent into protective custody, mandatory reporting of death, immunity from liability, penalties for failure to report, and obligations for the provision of services and procedures necessary to safeguard the life or health of the child or adolescent. Such policies and procedures shall address the requirements for the identification and reporting of abuse or neglect regarding residents who are children, or who are the parents or guardians of children; and

(8) the governing body shall ensure the development of, approve and periodically review and revise a written Quality Assurance Plan for the residential program. Such plan shall include, but not be limited to, the following:

(i) written policies and procedures for monitoring the operation of the residential program against criteria established in its functional program;

(ii) a written utilization review procedure to monitor the extent to which a resident is receiving appropriate services and is being served at an appropriate level of care;

(iii) a written procedure for incident reporting and incident management; and

(iv) written policies and procedures describing a resident grievance process which ensures the timely review and resolution of residents' complaints and which provides a process enabling residents to request review by the appropriate field office of the Office of Mental Health when resolution is not satisfactory.

(e) A provider of service shall ensure that no otherwise appropriate resident is denied access to services solely on the basis of multiple diagnoses, physical disability, a diagnosis of HIV infection, AIDS, or AIDS-related complex, pregnancy, or solely because the individual has any past involvement with substance abuse or the criminal justice system.

(f) There shall be an emergency evacuation plan and staff shall be knowledgeable about its procedures.

(g) The provider of service shall participate as required with the local governmental unit in local planning processes pursuant to sections 41.05 and 41.16 of the Mental Hygiene Law. The local government may ask the provider of service to provide, at minimum and not limited to, the following information:

(1) provision of budgeting and planning data as requested by the local governmental unit;

(2) identification of the population being served by the program;

(3) identification of the geographic area being served by the program; and

(4) description of the program's relationship to other providers of service including, but not limited to, a description of all written agreements entered into pursuant to this Part; and

(5) for CREDIT programs, in addition to the provisions of paragraph (4) of this subdivision, a description of specific affiliation agreements with designated Comprehensive Care Center for Eating Disorders providers, which must include referral and admission procedures, as well as procedures for crisis clinical back-up.

(h) In programs which are not operated by State or local government, there shall be an annual audit, pursuant to a format prescribed by the Office of Mental Health, of the financial condition and accounts of the program performed by a certified public accountant who is not a member of the governing body or an employee of the program. Government-operated programs shall comply with applicable laws concerning financial accounts and auditing requirements.

(i) The provider of service shall establish mechanisms which ensure that a program provides reasonable accommodations and services which are relevant to the cultural, language and ethnic backgrounds of residents. Such mechanisms, whenever possible and appropriate, shall include ethnic representation on the staff and governing body and inclusion of ethnic appropriate content in service programs.

(j) The provider of service shall provide for the fair compensation of residents who are employed by the provider. Such employment shall meet all applicable requirements of Federal and State labor laws.

(k) The provider of service shall establish mechanisms to ensure priority access by individuals, referred to the provider, who are enrolled in an assisted outpatient treatment program established pursuant to section 9.60 of the Mental Hygiene Law. The provider of service shall cooperate with the local governmental unit or the commissioner, or their authorized representatives, in ensuring priority access by such individuals, and in the development, review and implementation of treatment plans for such individuals. Prior to the discharge by a provider of service of an individual who is also enrolled in an assisted outpatient treatment program, the provider of service shall notify the individual's case manager and the director of the assisted outpatient treatment program. Any and all related information, reports and data which may be requested by the commissioner or the local governmental unit shall be furnished by the provider of service. Any requests for clinical records from persons or entities authorized pursuant to section 33.13 or 33.16 of the Mental Hygiene Law, regarding individuals who are the subject of, or under consideration for, a petition for an order authorizing assisted outpatient treatment shall be given priority attention and responded to without delay.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.7 Functional program

(a) A functional program shall be developed and submitted with the provider's application for initial certification. The functional program shall, at a minimum, include:

(1) a description of the program mission, and the population to be served;

(2) admission and discharge criteria;

(3) a description of the specific service needs of the defined target population;

(4) a description of the existing service system, including but not limited to, mental health, health, social and other support services;

(5) a description of the residents' utilization or non-utilization of the existing service system and the rationale for such service use patterns;

(6) a description of the goals and anticipated outcomes of the program, including the anticipated average length of stay for residents;

(7) a description of the provider's role, if any, in providing a crisis bed capacity within the geographical area;

(8) a description of the proposed staff pattern, including job descriptions and qualifications, number of FTE's for each position, the supervisory structure and a staffing schedule;

(9) a description of the on-site services which will be provided to the residents, including how these services with further the goals and anticipated outcomes of the program;

(10) a description of how the residential program will appropriately utilize community- based services;

(11) a description of the expectations, if any, which may be placed upon the resident regarding program participation within the residence and participation in programs outside the residence; and

(12) a description of the process for providing of information about and explaining the rights of residents to both staff and residents.

(b) The functional program shall serve as a basis for delineating anticipated program outcomes which shall be monitored pursuant to section 595.13 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.8 Admission criteria

(a) Eligibility for admission to a residential program for adults shall be based upon:

(1) a designated mental illness diagnosis which, for purposes of the CREDIT program, must include a diagnosis of an eating disorder, as such term is defined in this Part; and one of the following:

(2) social security income or social security disability insurance enrollment due to a designated mental illness;

(3) extended impairment in functioning due to a designated mental illness, as defined in section 595.4(a) of this Part; or

(4) reliance on psychiatric treatment, rehabilitation and supports, as defined in section 595.4(a) of this Part.

(b) The provider of service shall make available to potential residents, upon application for admission, a clear and concise written description of the program and the application process. The description shall include but not be limited to:

(1) the criteria for admission as well as any criteria for exclusion;

(2) the necessary documentation required;

(3) the process for admission; including reasonable accommodations for admissions which may warrant a temporary waiver of one or more of the documentation criteria;

(4) the type(s) of living accommodations available;

(5) the services to be provided;

(6) the fee schedule;

(7) the residency agreement and house rules;

(8) the notice of resident rights;

(9) the policy regarding continued residency if a resident needs to be hospitalized; and

(10) the process for discharge planning.

(c) A referral for admission to a community residence that is a CREDIT program shall be received from a Comprehensive Care Center for Eating Disorders, or from the individual's primary care physician or mental health provider. All assessments must have occurred within the last 30 days. Each referral must include the following documents:

(1) an updated medical report;

(2) a psychosocial assessment;

(3) a psychiatric evaluation;

(4) a description of the individual's current behaviors and significant strengths and problems;

(5) documentation that potentially less restrictive community, home and/or extended non-residential services have been reasonably explored and are either not available or have not been successful;

(6) nutritional screening for eating disorder behaviors and nutritional status;

(7) psychological testing as needed; and

(8) assessment of the family system, when appropriate, by direct involvement with the family members.

(d) The provider of service shall make a decision with regard to an individual's application for admission no later than 15 working days after submission of all necessary documentation. The provider shall supply a written explanation to the applicant and the referring agency where there is reason(s) for rejection or delay, which shall include the steps that would need to be taken in order for the person to be admitted.

(e) No specific participation requirements for services outside the residential program may be imposed as a requirement for participation in a support residential program, unless in association with an order authorizing assisted outpatient treatment. A resident of a treatment residential program may be required, as a criteria for admission and continued stay, to participate in on-site and outside services if the services are critical to the rehabilitation goals of such individual, are consistent with the individual's service plan and are stipulated and agreed upon within the residency agreement.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.9 Discharge planning and procedures

(a) Each program shall ensure that a discharge planning process for each resident begins upon admission. The discharge planning process shall continue throughout a resident's stay. The discharge planning process shall include, at a minimum, the following activities throughout the process:

(1) involvement of the resident, program staff, other community service providers, and collaterals as appropriate and agreed to by the resident;

(2) clinical assessment of the resident's psychiatric status as well as assessment of the resident's rehabilitation, physical, social, and residential needs and goals, which is conducted by clinical staff who are qualified by credentials, training and experience to conduct such assessments;

(3) provision to the resident of options for appropriate residential environments and other necessary services;

(4) completion of referrals to appropriate community service and residential providers; and

(5) arrangements for appointments, where the resident so agrees, with community service and residential providers.

(b) A resident who is discharge-ready can be discharged. Discharge readiness requires that:

(1) discharge planning activities have been fully followed;

(2) appropriate alternative housing has been identified; and

(3) the resident is willing to relocate to such housing.

(c) A resident who is not discharge-ready or who is no longer eligible for services can be discharged provided discharge planning activities have been followed to the extent practicable under the circumstances, and one of the following conditions applies:

(1) the resident has permanently vacated the residence;

(2) the resident's condition has changed, as follows:

(i) the psychiatric or medical status of the resident has changed such that the resident requires inpatient hospital care; and/or

(ii) the resident's capacity for self preservation, as determined pursuant to section 595.16 of this Part, requires a level of care other than the residential program, or the resident is otherwise at risk due to requiring additional medical or psychiatric services or supports not available within the residential program; or

(iii) the psychiatric status of the resident has changed such that the services or support required can be provided in a less restrictive setting, and a clinically-appropriate less restrictive setting has been identified and is available;

(3) the resident fails to meet one or more material responsibilities for residency as described in section 595.10(a)(2) and (c) of this Part; or

(4) the resident's behavior poses an immediate and substantial threat to the health, safety and well-being of the resident or other individuals or creates a serious and ongoing disruption of the therapeutic environment of the residential program;

(d) A discharge under paragraph (c)(1) of this section requires that it has been determined that the resident has voluntarily left the residence with no apparent intent to return. If such determination cannot be made the program shall treat the absence as an incident pursuant to the requirements of section 595.13(a)(2) of this Part and shall hold the bed until such time as a determination is made regarding the resident's location. In such circumstances the bed shall not be held for more than 30 days.

(e) A discharge under paragraph (c)(2) of this section requires that a clinical assessment be conducted by clinical staff who are qualified by credentials, training and experience to conduct such assessments, provided, however, that a determination under subparagraph (c)(2)(iii) of this section, such services and support required can be provided in a less restrictive setting, must be made by a physician. If an individual is to be discharged because that individual is no longer capable of self preservation as determined pursuant to section 595.16 of this Part, or would be otherwise at risk due to requiring different or additional services, supports or physical environments not available within the residential program except to the extent required pursuant to the Federal Americans with Disabilities Act, the individual shall be notified in writing of the need for and intent to secure an appropriate alternative living arrangement.

(f) A discharge under subparagraph (c)(2)(ii) or (iii) of this section, or a discharge under paragraph (c)(3) of this section requires the following:

(1) The provider shall first make every reasonable effort to assist the resident in meeting the responsibilities of residency as agreed to by the resident and documented in the clinical record or facilitate the resident's ability for self preservation, as applicable.

(2) If efforts under paragraph (1) of this subdivision are not successful, the provider shall conduct a clinical assessment and make every reasonable effort to identify a mutually agreed upon discharge plan. The provider and the resident shall consult as needed with the local governmental unit or other appropriate entities in an effort to have any differences between the involved parties mediated or to obtain assistance in procuring appropriate residential and service alternatives, which shall include referral to a single point of access process (or a similar successor process), where such process has been established by the local governmental unit.

(3) If efforts under paragraph (2) of this subdivision are not successful, the provider must give the resident a written 30-day preliminary notice of the intent to terminate residency providing the reason(s) for termination, any potential process for correcting the situation and alternative residential and service options. If requested by the local governmental unit, the provider shall send the written notice to the local governmental unit. If a discharge is predicated upon a resident no longer being capable of self preservation, that reason must be included in such notice. Such notice shall also identify the resident grievance procedure as required in section 595.10(a) of this Part, and shall advise the resident of the availability of the mental hygiene legal service.

(4) If efforts under paragraph (3) of this subdivision are not successful, the provider shall give the resident a written final notice of the intent to terminate residency in 30 days, which shall set forth the reasons for termination, as well as alternative residential and service options which shall include referral to a single point of access process (or a similar successor process), where such process has been established by the local governmental unit. Such notice shall also advise the resident that he or she has the right to submit a written objection to the Office of Mental Health contact person, identified in accordance with section 595.10(a) of this Part, within five days of the date of the written final notice of intent to terminate residency. If requested by the local governmental unit, the provider shall send the written notice to the local governmental unit.

(5) If the resident elects to object to the determination, he or she must mail a written objection to the Office of Mental Health contact person, within five days of receipt of written notice of intent to terminate residency. Upon receipt of such written objection, the Office of Mental Health contact person or his/her designee shall offer the involved parties an opportunity to be heard, which shall include holding a meeting involving all relevant parties, unless waived by all parties. The meeting should be held within 10 days from the date of receipt of written notice to terminate residency, whenever possible. A written decision shall be issued to the involved parties within five days thereafter. An audio recording of the meeting shall be made, which shall be used, disclosed, and maintained in accordance with Federal and State laws and regulations governing the privacy of individually identifying health information. The mental hygiene legal service or other advocate chosen by the resident may assist the resident with the presentation of his or her objection.

(6) If any party to the proceeding is not satisfied with the decision, a request may be made for an administrative review by the commissioner. The commissioner may designate an individual to conduct such administrative review and fulfill his or her responsibilities in accordance with this paragraph.

(i) The request for administrative review shall be made within five days of the date of receipt of the written decision of the Office of Mental Health contact person. Such request may include a written detailed statement of the factual issues in dispute.

(ii) The mental hygiene legal service or other advocate chosen by the resident may assist the resident with the submission or may make a submission on his or her behalf, provided, however, that if the submission is not made by the resident, a duly executed authorization form permitting disclosure of information to the mental hygiene legal service or other advocate for the purpose of administrative review of the mater at hand must accompany such submission.

(iii) The commissioner will issue a final written decision to all parties within 10 days of receipt of the request for an administrative review, which shall be based on the meeting, the written submissions of the involved parties and any relevant documentation provided to the commission by the involved parties. The commissioner may, at his or her discretion, send the matter back to the relevant Office of Mental Health contact person for further review, which must take place within the 10 day period for the commissioner's review.

(iv) The determination after the commissioner's administrative review of the matter shall be final and is not subject to further administrative review.

(7) During the period that an objection is undergoing administrative review:

(i) the resident shall participate in all programming in which he or she agreed to participate, as set forth in the residency agreement; and

(ii) every effort feasible shall be made to maintain the resident in at least his or her current level of programming.

(g) A discharge under paragraph (c)(4) of this section requires the following:

(1) The provider of service must determine that the resident's behavior poses an immediate and substantial threat to the health and well-being of the resident or other individuals or creates a serious and ongoing disruption to the therapeutic environment of the residential program. This determination shall be documented in the clinical record. In such instance, nothing in this section shall preclude the provider of service from immediately arranging for the removal of the resident to a location which has been determined to be an appropriate location for the resident given the resident's current status, needs, and conduct. Such location shall have the capacity to provide reasonable safety for the resident. If necessary, such removal shall be conducted by a mental health crisis team, where available or, a police officer who is a member of an authorized police department or force, or a sheriff's department.

(2) The provider of service may give the resident a written final notice of the intent to terminate residency within 30 days, or if subdivision (h) of this section applies, the period provided for therein, which shall set forth the reasons for termination, as well as alternative residential and service options. Such notice shall also advise the resident that he or she has the right to submit a written objection to the Office of Mental Health contact person, identified in accordance with section 595.10(a) of this Part, within five days of the date of the written final notice of intent to terminate residency. The notice shall also identify the resident grievance procedure as required in section 595.10(a) of this Part, and shall advise the resident of the availability of the mental hygiene legal service. If requested by the local governmental unit, the provider shall send the written notice to the local governmental unit.

(3) The provider of service shall make diligent efforts to conduct a clinical assessment by clinical staff who are qualified by credentials, training and experience to conduct such assessments to either assist in the reentry of the resident to the program or to recommend discharge from the program. Such efforts shall be documented in the clinical record. The provider of service shall also make diligent efforts, in consultation with the local governmental unit, to make recommendations for appropriate residential and treatment alternatives and interventions available to the resident upon discharge from the program, which shall include referral to a single point of access process (or a similar successor process) where such process has been established by the local governmental unit.

(4) If the resident elects to object to the determination, he or she must mail a written objection to the Office of Mental Health contact person, within five days of receipt of the final written notice of intent to terminate residency. Upon receipt of such written objection, the Office of Mental Health contact person or his/her designee shall offer the involved parties an opportunity to be heard, which shall include holding a meeting involving all relevant parties, unless waived by all parties. Such meeting should occur within 10 days of receipt of the resident's written objection, whenever possible. A written decision shall be issued to the involved parties within five days thereafter. An audio recording of the meeting shall made, which shall be used, disclosed, and maintained in accordance with Federal and State laws and regulations governing the privacy of individually identifying health information. The mental hygiene legal service or other advocate chosen by the resident may assist the resident with the presentation of his or her objection.

(5) If any party to the proceeding is not satisfied with the decision, a written request may be made for an administrative review by the commissioner. The commissioner may designate an individual to conduct such administrative review and fulfill his or her responsibilities in accordance with this paragraph.

(i) The request for administrative review shall be made within five days of the date of receipt of the written decision by the Office of Mental Health contact person. Such request may include a written detailed statement of the factual issues in dispute.

(iii) The commissioner will issue a final written decision to all parties with 10 days of receipt of the request for an administrative review, which shall be based on the meeting, the written submissions of the involved parties and any relevant documentation provided to the commissioner by the involved parties. The commissioner may, at this or her discretion, send the matter back to the relevant Office of Mental Health contact person for further review, which must take place within the 10 days period for the commissioner's review.

(iv) The determination after the commissioner's administrative review of the matter shall be final and is not subject to further administrative review.

(6) During the period that the matter is being review by the Office of Mental Health contact person, or by the commissioner or his/her designee, nothing herein shall preclude a relocation or discharge of a person pending a final administrative decision, provided, however, that the resident shall be assured appropriate residency, and every effort shall be made to maintain the health and safety of all residents of the program, until the issuance of a final administrative determination.

(i) The program shall hold the bed until such time as determination by the commissioner is made, but in such circumstances the bed need not be held for more than 30 days.

(ii) In the event the final determination of the commissioner or his or her designee is that there lacked sufficient grounds to terminate the residency, the commissioner shall direct that the resident be permitted to re-enter the program, unless it is determined that it would be clinically inappropriate for the resident or others for such resident to so return. In this event, prior to issuing his/her final determination within 10 days of receipt of the request for an administrative review in accordance with paragraph (5) of this subdivision, the commissioner (or his or her designee) must provide sufficient written notice to the resident and the program, and to any persons authorized by the resident to receive such notice, that relevant clinical information for consideration by the commissioner may be submitted within five days from the date of such notice.

(h) In the event that a resident is hospitalized, the provider shall consult with the hospital inpatient staff, the resident, and other appropriate service providers and significant others to plan for the return of the resident upon discharge from the hospital. The provider shall assure the resident continued residency for no less than 45 days of such hospitalization unless it is mutually agreed upon by the provider and the resident that the resident will not be returning to the program. The provider shall assure the resident continued residency for up to 90 days if the provider determines, based upon consultation with inpatient staff, the resident and other appropriate providers and significant others, that the resident will return within that period of time. Former residents of the residential program who are discharged from a hospital, who do not meet the above 45- or 90-day bed hold criteria, shall be given priority consideration for readmission to an appropriate residence operated by the provider.

(i) If an individual has been admitted to the residence pursuant to an agreement to provide crisis residential services or pursuant to an agreement with a managed care organization which is certified or approved by the Commissioner of the New York State Department of Health or other organization or entity approved by the Office of Mental Health, the provider is exempt from meeting the requirements of subdivision (f), paragraphs (g)(2) and (3), and subdivision (h) of this section. Beds utilized pursuant to this subdivision shall be deemed temporary use beds. Temporary use beds are to be used for time limited stays of 60 days or less.

(j) A local governmental unit may request that providers submit all written notices of intent to terminate residency pursuant to subdivisions (f) and (g) of this section, or it may, at its discretion, selectively request the submission of such notices in specific instances.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.10 Rights of residents

(a) A resident residing in a residential program shall be entitled to the rights defined in this subdivision. A provider of service shall be responsible for ensuring the protection of these rights:

(1) A resident has the right to receive his/her full personal needs allowance in a regular and timely manner. Each resident shall have the freedom to use such allowance as he/she chooses unless enrolled in a voluntary money management program. The provider shall establish and adhere to a regular monthly payment schedule. Upon the increase of a fee, a provider of service shall give a resident at least 30 days' written notice of the implementation of the adjusted fee.

(2) A resident shall be provided with a clearly written residency agreement, approved by the Office of Mental Health, which specifies:

(i) the terms of the agreement;

(ii) the services required to be provided by the program;

(iii) the residence fees;

(iv) the due dates for payment of fees;

(v) the responsibilities of residents;

(vi) the policy concerning continued residency and fees, if a resident needs to be rehospitalized;

(vii) the resident grievance procedure which shall:

(a) ensure an objective review of the issues, timely resolution and adequate documentation;

(b) ensure that the name and number of a New York State Office of Mental Health contact person is made available to a resident upon admission and again whenever a grievance process cannot be resolved to the satisfaction of all parties;

(viii) the house rules with respect to visitors, including but not limited to, curfews and use of the premises; and

(ix) the allowable reasons and process for termination of residency by the providers of service.

(3) A resident has the right to have access to a resident's council or other designated mechanisms for participation in the establishment of house rules and other matters which affect the operation of the residence. House rules may not violate a resident's rights as described in this section.

(b) A provider of service shall ensure the provision of notices of recipients' rights pursuant to section 527.5 of this Title.

(c) A resident residing in a residential program shall be apprised and informed, in writing, of his/her responsibilities and the conditions of residency by the provider of service. Such responsibilities and conditions of residency shall be as follows:

(1) to respect the quiet enjoyment of other residents in common and shared residential areas;

(2) to act in ways which do not adversely impact on the habitability of the premises;

(3) to not create health or safety hazards for themselves, residents, staff or other individuals;

(4) to pay the residency fees in full and in a timely manner. Fees shall be adjusted to reflect each resident's ability to pay. Fees charged recipients of public assistance or Supplemental Security Income benefits shall not exceed amounts actually available to such persons under law less the personal needs allowance required to be reserved for the use of the individual pursuant to State law and regulation;

(5) to comply with the residency agreement and house rules; and

(6) to give at least 30 days' written notice of the intention to terminate residency.

(d) A residency agreement entered into by the provider of service and the resident may create additional rights and obligations, but may not impose conditions that are inconsistent with the provisions or intent of this Part. Such agreement shall be consistent with the resident's individual service plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.11 Service planning

(a) Services provided within a residential program, including a CREDIT program, shall be provided in accordance with a service plan developed within four weeks of admission to the program. In the case of a residence that is a CREDIT program, the initial service plan must be developed within three days of admission. At the time of admission, an admission note shall be prepared by a qualified mental health staff person which, at a minimum, indicates a description of the needs of the individual, as well as a brief description of the services necessary to meet these needs during the initial period after admission.

(b) Such plan shall be developed by the staff of the program, the resident and any collateral identified for participation in planning, as appropriate and desired by the resident. The service plan shall be reviewed and signed by a qualified mental health staff person. The individualized written service plan shall be a mutually agreed upon plan which, at a minimum, identifies the following:

(1) statement of resident's readiness to participate in the services provided by the program; or

(2) statement of activities which will be provided to engage resident to participate in the services provided by the program; and

(3) statement of the resident's needs and strengths;

(4) statement of service goals and objectives;

(5) identification of the services to be provided;

(6) proposed time periods; and

(7) efforts to coordinate services with other providers.

(c) Progress notes shall be recorded by authorized program staff members. Such notes shall be prepared at least monthly for all programs other than the CREDIT program, and shall indicate the type of services which have been provided, any significant events which have occurred and, if appropriate, any recommendations for changes to the goals and objectives of the service plan. For the CREDIT program, progress notes should be completed weekly.

(d) The individualized written service plan shall be reviewed at least once every three months, with the initial review occurring three months from the date of admission. The review shall include participation of staff involved in the provision of services to the resident, the resident, and/or if appropriate and with the approval of the resident, the resident's family or other collateral. Such review shall include the following:

(1) assessment of the progress of the resident in regard to mutually agreed upon goals and objectives in the individualized written service plan;

(2) recommendations for adjustment of goals and objectives, time periods for achievement, intervention strategies or the initiation of discharge planning; and

(3) review of the individualized written service plan and signed approval by a qualified mental health staff person.

(e) As a part of the service planning process for each resident, the provider shall ensure that:

(1) a resident shall have access to a copy of his/her individualized written service plan at all times;

(2) a resident shall be encouraged to determine the participants to be involved in the planning process;

(3) entries made in the service plan shall be in the resident's own words or reflect a reasonable substitute for a resident's limitation for verbal expression;

(4) a service plan shall record planned interventions, document the success or failure of such interventions and include a plan for ongoing supports after discharge from the program; and

(5) a service plan shall reflect the participation of treatment and rehabilitation personnel with specialized expertise relevant to the need of the resident.

(f) In addition, programs receiving reimbursement under the Medicaid Assistance Program, shall comply with all other service authorization and service planning requirements set forth in section 593.6 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.12 Program requirements

(a) A residential program shall be designed to provide room and board within stable housing with on-site services which is supported by transportation activities and mental health, health, social services and other generic services within the community. Single-room occupancy programs shall comply with section 595.15(b)(2)(iii) of this Part as it relates to board requirements. A residential program shall be responsible for engaging a resident in rehabilitative services consistent with the individual's desire, tolerance and capacity to participate in such services, and the individual's written treatment plan, if any, prepared in association with an order authorizing assisted outpatient treatment.

(b) A residential program shall ensure that, as indicated in a resident's individualized written service plan, the following services are provided directly or through written agreement with other providers. Such services shall be provided as indicated in a resident's individualized written service plan:

(1) assertiveness/self-advocacy;

(2) community integration services/resource development;

(3) daily living skills;

(4) health services;

(5) medication management and training;

(6) parenting training;

(7) rehabilitation counseling;

(8) skill development services;

(9) socialization;

(10) substance abuse services; and

(11) symptom management.

(c) A provider of service shall continuously employ an adequate number and appropriate mix of staff to carry out the objectives of the program and to ensure the outcomes of the program.

(d) Congregate care and service-enriched single room occupancy type residential programs shall have a minimum of one full-time equivalent staff on duty at all times.

(e) Apartment type residential programs shall ensure that staff are available to maintain adequate contact to ensure the health and safety of residents and to ensure appropriate support of the program's functional program as well as individual written service plans.

(f) Staff of a residential program shall be available to assist in emergencies on at least an on- call basis at all times.

(g) Additional requirements for residences that are CREDIT programs.

(1) A community residence for eating disorder integrated treatment program (CREDIT program) as defined in section 595.4 of this Part, in addition to the requirements for licensed residential programs identified in this section, also must be affiliated with an entity designated by the New York State Department of Health as a Comprehensive Care Center for Eating Disorders (CCCED).

(2) CREDIT programs shall admit only individuals over the age of 18 who have been diagnosed with an eating disorder and who have been referred by a CCCED, or by the individual's primary care physician or mental health provider.

(3) The CREDIT program affiliation with the CCCED shall be pursuant to written agreements with the CCCED or the providers of which it is comprised. Such agreements shall be subject to approval by the Office of Mental Health, shall provide for continuity and integration of care with the CCCED and shall require, at a minimum:

(i) the performance of a psychiatric assessment;

(ii) the development of an integrated service plan;

(iii) the performance of a medical examination;

(iv) the supervision of meal, bathroom and exercise time; and

(v) family participation, as appropriate.

(4) The CREDIT program shall have sufficient staff to meet the special needs of individuals residing in a community residence who have been diagnosed with an eating disorder.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.13 Quality assurance

(a) Each provider of service shall develop a quality assurance plan. The plan shall include, but is not limited to:

(1) Utilization review. Each residential program must have a written utilization review procedure which includes but is not limited to, review of:

(i) appropriateness for admission to and continued stay in the residential program;

(ii) appropriateness of the services provided by the residential program; and

(iii) readiness for referral and transfer of clients who no longer meet criteria for the residential program. Utilization review must be carried out, to the maximum extent possible, by staff who function independently from the staff with primary clinical responsibility for the resident.

(2) Incident management and reporting. Residential programs shall have an internal incident reporting, investigation and management process. Residential programs shall comply with Mental Hygiene Law and Part 524 of this Title which governs incident reporting by licensed mental health programs. The quality assurance plan shall contain written procedures for carrying out incident management and reporting.

(3) Monitoring. Residential programs shall have procedures for internal monitoring of program performance. Performance should be monitored against the criteria stated in the program's functional program. The results of this internal monitoring shall be used to identify problems in client care and opportunities to improve care and shall be regularly reviewed and acted on by the governing body.

(b) The Office of Mental Health shall have responsibility for monitoring the quality of residential programs.

(1) Program monitoring. External program monitoring shall be carried out by the Office of Mental Health and/or its authorized agents. The Office of Mental Health will review program operations, quality assurance activities and the individual records of residents during periodic certification visits.

(2) Utilization review. External utilization review shall be carried out as necessary by the Office of Mental Health, its regional offices, or other agents against the criteria contained in the residential program's functional program.

(3) Incident reporting. The Office of Mental Health will conduct an external review of residential programs as necessary based on patterns or trends in reported incidents or on the occurrence of an individual incident of extreme gravity.

(1) request that the provider of service prepare a plan of correction; and

(2) provide such technical assistance as the Office of Mental Health deems necessary to assist the provider of service in developing and implementing an appropriate plan of correction.

(d) If the provider of service fails to prepare an acceptable plan of correction within a reasonable time or refuses to permit the Office of Mental Health to provide technical assistance or fails to promptly or effectively implement a plan of correction, it shall be determined that the provider of service is in violation of this Part.

(e) Each residential program shall have a consumer evaluation process, in which residents as well as other relevant individuals involved with the resident shall have an opportunity to give feedback about the program in a confidential manner. The information from this process shall be summarized annually and submitted to the Office of Mental Health, the resident and all staff in the program. The confidentiality of residents, families and other impacted parties shall be protected.

(f) Upon a determination that a provider of service is in violation of this Part or upon a determination that a provider of service has failed to otherwise comply with the terms of its operating certificate or with the provisions of any applicable statute, rule or regulation, the commissioner may revoke, suspend or limit the provider's operating certificate or impose fine in accordance with the Mental Hygiene Law, section 31.16 and Parts 573 and 503 of this Title.

(g) Nothing in this section shall limit or preclude the commissioner from taking whatever immediate measures may be necessary, including the exercise of his authority under Mental Hygiene Law, sections 31.16(b) and 31.28, in the event that a resident's health or safety is in imminent danger or there exists any condition or practice which poses imminent danger to the health or safety or any resident or the public.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.14 Case records and reports

(a) There shall be a complete case record maintained for each resident. Such case record shall be maintained in accordance with recognized and acceptable principles of recordkeeping as follows:

(1) case record entries shall be in nonerasable ink or typewriter;

(2) case records shall be legible;

(3) case records shall be periodically reviewed for quality and completeness; and

(4) case records shall be dated and signed by appropriate staff.

(b) The case record shall be available to all staff of the program who are participating in the provision of services to the resident and shall include the following information:

(1) resident identifying information and history;

(2) preadmission screening notes, as appropriate;

(3) diagnosis;

(4) assessment of the resident's psychiatric, physical, social and psychiatric rehabilitative needs;

(5) reports of appropriate and necessary mental and physical diagnostic exams, assessments, tests and consultations;

(6) the individualized written service plan;

(7) dated progress notes which relate to goals and objectives of service provision in accordance with periodic reviews;

(8) documentation of the type of service provided, the date it was provided, its duration and the name of the person rendering the service;

(9) notes which relate to significant events and/or untoward incidents;

(10) periodic service plan reviews;

(11) discharge planning summary;

(12) referrals to other programs and services;

(13) consent forms;

(14) discharge plan; and

(15) residency agreement.

(c) Statistical information shall be prepared and maintained as may be necessary for the effective operation of the program, and as may be required by the Office of Mental Health.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.15 Premises

(a) Safety.

(1) All residential programs shall be safe and suitable for the comfort and care of the resident. Residences shall be maintained in a good state of repair and sanitation.

(2) Code requirements.

(i) Residential programs comprising the entire residential occupancy of a building, or programs in which the sponsoring agency or other Office of Mental Health approved entity otherwise controls the entirety of the building, shall meet the provisions of the appropriate chapter and section of the most current recognized edition of the National Fire Prevention Association (NFPA)--101 Life Safety Code (LSC) as noted in clauses (a)-(c) of this subparagraph. Said codes are published by the National Fire Protection Association, One Batterymarch Park, Quincy, MA 02269 and are available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231 and the Office of Mental Health, Bureau of Inspection and Certification, 44 Holland Avenue, Albany, NY 12229.

(a) Newly constructed residences shall be governed by the appropriate chapter for new construction of the Life Safety Code. New residential programs which house 16 or few persons (excluding staff) shall specifically meet the provisions of the chapter on small facilities. New residences housing more than 16 residences shall specifically meet the provisions of the chapter on large facilities.

(b) Existing buildings which are converted to use as residential programs shall be governed by the appropriate chapter for existing construction of the Life Safety Code. Existing residences housing 16 or fewer persons (excluding staff) shall specifically meet the provisions of the chapter on small facilities. Existing residences housing more than 16 residents shall specifically meet the provisions of the chapter on large facilities.

(c) The applicable standards of the appropriate chapters of the LSC shall be based upon the anticipated evacuation capability of the residents to be housed.

(ii) Residential programs, or portions of residential programs, located in buildings not fully controlled by the sponsoring agency or other Office of Mental Health approved entity are required to provide a smoke detection system satisfactory to the Office of Mental Health. A plan showing the proposed system must be submitted for review and approval.

(a) Smoke detectors are required outside of each sleeping area in the immediate vicinity of the bedrooms, on each additional story of the living unit, including basements; and smoke or heat detectors in those areas separated by a door from the above required detectors.

(b) Smoke and heat detectors may be powered by batteries, provided that the batteries are monitored. A distinctive trouble signal must be given before the battery is incapable of operating the device.

(iii) Residential programs, or portions of residential programs located in buildings not fully controlled by the sponsoring agency or other Office of Mental Health-approved entity are required to provide carbon monoxide detectors, as per the Residential Code of New York State, the Fire Code of New York State, subdivision 5-a of section 378 of the New York Executive Law ("Amanda's Law") and Local Law No. 7 for residences in New York City, as applicable.

(a) Carbon monoxide detectors shall be installed in locations as required by applicable law and according to manufacturer's directions and specifications.

(b) Carbon monoxide detectors shall be battery operated, plug-in type or hardwired, in accordance with applicable law.

(c) Inspections and tests of carbon monoxide detectors shall be made in accordance with manufacturer's directions and specifications. Written documentation of such testing shall be maintained for review.

(3) Residences must possess a valid certificate of occupancy or other documentation, which, in the opinion of the Office of Mental Health, satisfies the intent of a certificate of occupancy.

(4) All residential programs shall observe the following precautions:

(ii) Staff and residents shall be trained in the use of firefighting equipment, and in the means of rapidly evacuating the building.

(iii) The following items are prohibited:

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

(b) portable propane devices for heating, cooking, or lighting; and

(a) electric space heaters;

(b) wood or coal burning stoves for heating; and

(b) Design and space requirements.

(1) All residential programs shall:

(i) Provide not less than 145 square feet of living space per resident. Living space shall include:

(a) single bedrooms of at least 90 square feet and/or multiple bedrooms providing at least 75 square feet per resident, exclusive of closets. No more than two persons shall share a bedroom without the specific approval of the Office of Mental Health; and

(b) support space of at least 55 square feet per person. Support space may include living rooms, dining rooms, lounge areas, kitchens and other such spaces as are accessible to residents and used in program activities. Bedroom space in excess of the required minimum may be credited toward meeting support space requirements.

(ii) Be eligible, with the approval of the Office of Mental Health, for the following waivers, the total of which shall not exceed 10 square feet per resident:

(a) up to 15 percent of bedroom space for one and two resident bedrooms; and

(b) up to 10 percent of support space in congregate type residences; or

(iii) Insure that bedrooms and all required support space meet the requirements for habitable space as defined in the applicable building code.

(iv) Provide a minimum of one toilet and one lavatory for each five residents and a minimum of one tub or shower for each eight residents or part thereof.

(v) Provide the following equipment:

(a) for each resident, a suitable, comfortable, bed and an adequate supply of clean linen. Cots shall not be used. High hospital-type beds shall not be used except for persons requiring them;

(b) a chair, lamp, dresser, closet or wardrobe and, if possible, a desk or table for each resident, and curtains, shades, or blinds for each window.

(vi) Maintain common areas in good condition and appropriately furnished.

(2) Each service enriched single room occupancy program:

(i) shall meet all of the requirements of paragraph (1) of this subdivision;

(ii) shall not exceed 100 bedrooms; and

(iii) shall provide either:

(a) common areas for food preparation and dining;

(b) at least one kitchen/kitchenette for each six residents, or part thereof; or

(iv) shall provide access to cooking facilities for each resident's personal use. At least one kitchen/kitchenette shall be provided and accessible to each 12 residents, or part thereof. The Office of Mental Health may waive this requirement if an existing structure is being used and it would be too costly to renovate the facility to meet this requirement. In such cases, the applicant must submit a plan that provides residents with some access to cooking facilities for personal use.

(1) Design and construction of new buildings and the alteration of existing buildings shall be in accordance with the requirements of Part 551 of this Title.

(1) compensatory or other existing features which have the effect of reducing the impact of the proposed waiver;

(2) the service needs of the population or individual served;

(3) the operating history of the program and/or sponsoring agency requesting the waiver; or

(4) the cost of meeting the requirements.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.16 Determination of capacity for self preservation

(a) The evacuation capacity of residents is a function of both the ability of the residents to evacuate and the assistance provided by staff. Determination of satisfactory ability to evacuate should be made prior to admission to a residential program. Such a determination may be reached by review of the applicant's history and a face-to-face interview which shows a capacity to evacuate equivalent to that of the general public. When uncertainty exists a time drill may be used for a more objective measurement.

(b) Subsequent to admission:

(1) For service enriched single room occupancy and congregate programs, timed drills should be used to regularly evaluate the level of evacuation capability of program residents. Translation of drill times to evacuation capability may be determined as:

(i) three minutes or less, prompt;

(ii) over three minutes but not in excess of 13 minutes, slow.

Evacuation capability is based on the time of day or night when evacuation of the facility would be the most difficult (i.e., sleeping residents or fewer staff present). Residents needing assistance in evacuating should be assisted by staff to the extent that assistance would be available at the time of day or night in an actual emergency.

(2) For apartment programs, there shall be a regular re-evaluation of the resident's capacity to self preserve, which shall be documented by the program. Such reevaluation shall occur no less frequently than yearly and should also occur when there is reason to suspect changes in the resident's level of functioning.

(c) Fire exit drills shall be conducted in congregate and service enriched single room occupancy settings at least monthly at varying times of the day and night. Some drills may be announced in advance to the residents. The drills shall involve the actual evacuation of all residents to an assembly point as specified in the emergency plan and shall provide residents with experience in exiting through all exits. Actual exiting from windows shall not be necessary to meet the requirements of this section. Opening the window and signaling for help shall be an acceptable alternative. Records should indicate the time to evacuate, date and times of day, location of simulated fire origin, the escape paths used and comments relating to residents who did not evacuate within the required time.

(d) Residents and prospective residents shall only reside in or be admitted to a type of residential program appropriate to the individual's evacuation capability.

(1) If a resident or prospective resident is clearly capable of prompt evacuation, that individual may be admitted to or remain in any residential program of a type appropriate to his or her functional level.

(2) If a resident or prospective resident fails to demonstrate a capability for prompt evacuation during a fire drill, the matter should be completely documented in the fire drill log and in the resident's record. Immediate steps should be taken to relocate the resident to a location within the residence which will allow for easier egress for such time as is necessary until another fire drill can be conducted (no more than 14 days) and the resident's behavior observed again.

(3) If any resident or prospective resident would be excluded from a residential program because of inability to evacuate within the time limits above, an evaluation shall be conducted as described in the most current recognized edition of the National Fire Protection Association 101A, Alternative Approaches to Life Safety. Said codes are published by the National Fire Protection Association, One Batterymarch Park, Quincy, MA 02269 and are available for review at the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231 and the Office of Mental Health, Bureau of Inspection and Certification, 44 Holland Avenue, Albany, NY 12229. If the resultant E-score yields an evacuation difficulty level of prompt, the applicant or resident shall not be excluded for failure to evacuate within the required time limit. If the resultant E-score yields an evacuation difficulty level of slow, the applicant or resident shall not be excluded solely for failure to evacuate within the required time frame from a facility that is constructed to meet the slow evacuator standards of the current recognized edition of the Life Safety Code.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 595.17 Transition from part 586 to part 595

(a) Programs certified pursuant to Part 586 of this Title may continue to operate pursuant to the requirements of Part 586 of this Title until the expiration of the term of their operating certificate.

(b) Upon the expiration of an operating certificate issued pursuant to Part 586 of this Title, a provider may:

(1) return its operating certificate to the Office of Mental Health; or

(2) apply for an operating certificate as a program established under this Part.

(c) An application for transition to this Part may be made prior to the expiration of the program's existing operating certificate.

(d) No residential program, including a residential care center for adults, shall exceed the certified capacity requirements delineated in section 595.5(b) of this Part, unless it was in operation prior to the effective date of these regulations, and had been issued a valid operating certificate authorizing a greater number of beds.

(e) Programs licensed prior to the effective date of these regulations are exempt from meeting the requirements of section 595.15(a)(2)(i) of this Part.

(f) Programs not yet licensed, but with Office of Mental Health architectural approval as of the effective date of these regulations, may apply to the Office of Mental Health for permission to meet the architectural standards of Part 586 rather than Part 595.

Part 596 Telehealth Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.1 Background and intent

(a) Telehealth is defined as the use of telehealth technologies by telehealth practitioners to provide mental health services at a distance. Such services do not include a n electronic mail message, text message, or facsimile transmission between a provider and a recipient, or a consultation between two professionals or clinical staff although these activities may support the delivery of services via telehealth. Additionally, such services do not include services provided where the originating and distant sites are the same location.

(b) Telehealth services may be provided only where clinically appropriate and with informed consent by the recipient . Where the recipient is a minor consent shall also be provided by the parent/guardian or other person who has legal authority to consent to health care on behalf of the minor. The recipient may withdraw consent at any time. A provider may not deny services to an individual who has a preference to receive services in-person.

(c) The Office of Mental Health (the Office) supports the use of telehealth services where it is in the best interests of the person served, in accordance with Office guidance, and is performed in compliance with applicable federal and state laws and regulations and the provisions of this Part in order to address legitimate concerns about privacy, security, recipient safety, and interoperability.

(d) Audio-only or audio-video communication is an acceptable option only when determined appropriate by the provider of service, in accordance with guidelines established by the Office, and with informed consent from the recipient. Where the recipient is a minor, consent shall also be provided by the parent/guardian or other person who has legal authority to consent to health care on behalf of the minor.

(e) Audio-only or audio-video communication is covered by Medicaid and the Child Health Insurance Plan to the extent consistent with regulations promulgated by the New York State Commissioner of Health pursuant to Section 2999-cc of the Public Health Law.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.2 Legal base

(b) Sections 31.02 and 31.04 of the Mental Hygiene Law authorize the Commissioner of Mental Health 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.

(c) Section 2999-dd of the Public Health Law provides that health care services delivered by means of telehealth are entitled to Medicaid reimbursement under Social Services Law Section 367-u.

(d) Section 829 of Title 21 of the United States Code governs the law concerning internet prescribing of controlled substances.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.3 Applicability

(a) The provisions of this Part shall apply to any licensed, designated, or authorized provider of services pursuant to Article 31 of the Mental Hygiene Law who has been authorized by the Office under this Part to include the use of Telehealth Services as a means of rendering services licensed, designated, or authorized by the Office.

(b) The provisions of this Part shall not be construed to alter the scope of practice of any licensee or authorize the delivery of services in a setting, or in a manner, not otherwise authorized by law.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.4 Definitions

For purposes of this Part:

(a) Collateral means a person who is a member of the recipient's family or household, or other individual who interacts with the recipient and is directly affected by or has the capability of affecting their condition and is identified in the treatment plan as having a role in treatment and/or is necessary for participation in the evaluation and assessment of the recipient.

(b) Distant or "hub" site means the distant secure location, as defined in Section 596.6(a)(1)(vi) of this Part, at which the practitioner rendering the service using Telehealth Services is located.

(c) Encounter means a recipient or collateral contact in which services are provided using telehealth services, and whereby the care of the recipient is the direct responsibility of both the Article 31 licensed, designated, or authorized provider of services in which the recipient is admitted at the time of the encounter and the distant telehealth practitioner.

(d) Encryption means a system of encoding electronic data where the information can only be retrieved and decoded by the person or computer system authorized to access it.

(e) Originating or "spoke " site means a site where the recipient is physically located at the time mental health services are delivered to them by means of telehealth services, which may include the recipient's place of residence, other identified location, or other temporary location out-of-state.

(f) Provider of services means a provider of mental health services licensed pursuant to Article 31 of the Mental Hygiene Law or designated or authorized by the Office to provide mental health services.

(g) Recipient means a person who is receiving telehealth services.

(h) Telehealth Technologies means a dedicated secure interactive audio and/or video linkage system approved by the Office to transmit data between an originating/spoke site and distant/hub site for purposes of providing telehealth services.

(i) Telehealth Practitioner means : health services from a distant or hub site in accordance with the provisions of this Part.

(i) a prescribing professional eligible to prescribe medications pursuant to federal regulations; or

(ii) staff authorized by OMH to provide in-person services are authorized to provide behavioral health services via telehealth consistent with their scope of practice where applicable, and in accordance with guidelines established by the Office.

(j) telehealth Services means the use of telehealth technologies by telehealth practitioners to provide and support mental health services at a distance. Such services do not include a n electronic mail message, text message, or facsimile transmission between a provider and a recipient, services provided where the originating and distant sites are the same location, or a consultation between two physicians or nurse practitioners, or other staff, although these activities may support telehealth services.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.5 Approval to Utilize Telehealth Services

(a) telehealth services may be authorized by the Office for licensed, designated or otherwise approved services provided by telehealth practitioners, as defined in section 596.4 of this Part, from a site distant from the location of a recipient, where the recipient is physically located at a provider site licensed by the Office, or the recipient's place of residence or other temporary location within or outside the state of New York . or the recipient's place of residence, other identified location, or other temporary location out-of-state. Services may be delivered via telehealth unless otherwise specified by guidelines established by the Office.

(b) A provider of services must obtain prior written approval of the Office before utilizing telehealth services. Once approved, such provider shall be accountable for ensuring compliance with all ethical and scope of practice requirements for the provision of such services by the telehealth practitioner.

(1) Sufficient written demonstration that telehealth services will be used for assessment and treatment services licensed, designated, or authorized by the Office consistent with the provisions of this Part, guidelines established by the Office and that the services are being requested not to fulfill regulatory staffing requirements but because they are necessary to improve access and the quality of care of individuals receiving services or because they are necessary to address workforce shortages;

(2) Submission of policies and procedures and an attestation found in the guidelines established by the Office to provide telehealth services that satisfies the provisions of this Part and includes:

(i) confidentiality protections for persons who receive telehealth services, including measures to ensure the security of the electronic transmission;

(ii) procedures for assessing recipients to determine whether a recipient may be properly treated via telehealth services;

(iii) informed consent of persons who receive telehealth services and procedures for the withdrawal of such consent;

(iv) procedures for handling emergencies with persons who receive telehealth services; and

(v) contingency procedures to use when the delivery of telehealth service is interrupted, or when the transmission of the two-way interactions is deemed inadequate for the purposes of service provision.

(d) Requests for approval to offer telehealth services shall be submitted by licensed, designated, or authorized providers to the Field Office serving the area in which the program is located. Such Field Office may conduct a remote readiness review to either or both the originating, where non-residential, and distant sites prior to issuing approval.

(e) The Office shall provide its approval to utilize telehealth services in writing. The provider of services must retain a copy of the approval document and shall make it available for inspection upon request of the Office.

(f) Failure to adhere to the requirements set forth in this Part may be grounds for revocation of such approval. In the event that the Office determines that approval to utilize telehealth services must be revoked, it will notify the provider of services of its decision in writing. The provider of services may request an informal administrative review of such decision. The Commissioner may direct the provider to immediately suspend the provision of telehealth services pending review of a decision to revoke if there is reason to believe the safety or privacy of any recipient has been compromised as a result of telehealth service provision.

(1) The provider of services must request such review in writing within 15 business days of the date it receives notice of revocation of approval to utilize telehealth services to the Commissioner or designee. The request shall state specific reasons why such provider considers the revocation of approval incorrect and shall be accompanied by any supporting evidence or arguments.

(2) The Commissioner or designee shall notify the provider of services, in writing, of the results of the informal administrative review within 20 business days of receipt of the request for review. Failure of the Commissioner or designee to respond within that time shall be considered confirmation of the revocation of deemed status.

(3) The Commissioner's determination after informal administrative review shall be final and not subject to further administrative review.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.6 Requirements for Telehealth Services

(a) General requirements.

(1) The distant/hub site telehealth practitioner must:

(i) possess a current, valid license, permit, or limited permit to practice in New York State, or is designated or approved by the Office to provide services;

(ii) directly render the telehealth service;

(iii) abide by the laws and regulations of the State of New York including the New York State Mental Hygiene Law and any other law, regulation, or policy that governs the assessment or treatment service being provided;

(iv) adhere to the same laws, rules, and regulations and exercise the same standards of care and competencies required for in-house in-person delivered services;

(v) utilize evidence-based telehealth practice guidelines and standards of practice, to the degree they are available, to ensure recipient safety, quality of care, and positive outcomes; and

(vi) deliver services from a secure site/location which ensures the minimum standards for privacy for recipient- telehealth practitioner interaction are met . Telehealth practitioners may deliver services from a site located within the United States or its territories, which may include the practitioner's place of residence, office, or other identified space approved by the Office of Mental Health and in accordance with guidelines established by the Office.

(2) The telehealth practitioner must not be terminated, suspended, or barred from the Medicaid or Medicare program.

(3) If the originating/spoke site is a hospital, the telehealth practitioner at the distant/hub site must be credentialed and privileged by such hospital, as necessary and consistent with applicable accreditation standards.

(4) Telehealth services must be rendered using telehealth technologies. A provider of services approved to offer telehealth services shall adopt and implement technology in a manner that supports the standard of care to deliver the services, the features of which include at least:

(i) The technology and equipment utilized in the provision of telehealth services must be of sufficient quality, size, resolution and clarity where applicable such that the provider of services can safely and effectively provide the telehealth services;

(ii) The technology and equipment utilized in the provision of telehealth services or the use of audio or video telephone communication must be compliant with the Health Insurance Portability and Accountability Act (HIPAA).

(5) Telehealth practitioners must verify the identity of the recipient before commencing each telehealth encounter.

(6) A notation must be made in the clinical record that indicates that the service was provided via telehealth and indicating whether audio only services were provided which specifies the time the service was started and the time it ended.

(7) Telehealth services provided to recipients under age 18 may include staff members of the originating/spoke site in the room with the recipient. Such determinations shall be clinically based, consistent with Guidelines issued by the Office.

(8) For the purposes of billing, telehealth services shall be considered face-to-face contacts when the service is delivered in accordance with the provisions of the plan approved by the Office pursuant to section 596.5 of this Part. Providers should refer to the program specific guidelines established by the Office to determine authorized use of telehealth services.

(9) Culturally competent interpreter services shall be provided in the recipient's preferred language when the recipient and telehealth practitioners do not speak the same language.

(10) The telehealth practitioner providing telehealth services at a distant/hub site shall be considered an active part of the recipient's treatment team and shall be available for discussion of the case or for interviewing family members and others, as the case may require. Such telehealth practitioner shall prepare appropriate progress notes and securely forward them or directly enter them in to the originating/spoke provider health record as a condition of reimbursement.

(11) Telehealth services shall not be used:

(i) for purposes of seeking a court order for treatment over objection; or

(ii) restraint or seclusion, as defined in section 526.4 of this Title.

(12) Telehealth services may be used to satisfy specific statutory examination, evaluation, or assessment requirement necessary for the involuntary removal from the community, or involuntary retention in a hospital pursuant to section 9.27 of the Mental Hygiene Law, if such services are utilized in compliance with the following:

(i) The telehealth practitioner must be a physician and licensed to practice in New York.

(ii) Telehealth services can only be utilized to fulfill one of the three physician-required activities in a removal or retention action, i.e., either one of the two certifying physicians at the emergency hospital site, or the confirming physician at the receiving hospital site, can perform their required examination, evaluation, or assessment through telehealth technology.

(iii) The individual must be asked to consent to the use of telehealth technology for the purposes of the examination, which can be embedded within the hospital's general consent for treatment. If the individual refuses or is not able to give consent to treatment, the effort to obtain consent must be documented in the clinical record, and the examination may proceed.

(iv) All three physicians must sign the form at whatever location they are at the time of the examination, regardless of whether they are at the originating/spoke site or the distant/hub site. If the telehealth practitioner is one of the examining physicians, a copy of his or her signed Form OMH 471 must be received in the emergency hospital site before the individual is transported to the receiving hospital. The telehealth physician may sign their form electronically as permitted by the Electronic Signature and Records Act (ESRA). The transmission of the form may be electronically received, as long as in both instances the transmission is securely made over an encrypted line or network.

(v) When telehealth services are used as part of a 9.27 retention action, forms amended by the Office of Mental Health to account for the use of such services shall be utilized.

(vii) Telehealth consultation. Nothing herein shall preclude the additional use of telehealth services in retention actions on a consultative basis, rather than as a means of partially fulfilling a statutory requirement for any Mental Hygiene Law Article 9 evaluation. The responsibility for signing the commitment papers remains with the physician who actually conducted the evaluation of the individual at the facility, not the psychiatrist who provided the telehealth consultation.

(13) Telehealth services may be used to satisfy specific statutory examination, evaluation, or assessment requirement necessary for the immediate observation, care and treatment in a hospital, pursuant to section 9.39 of the Mental Hygiene Law, if such services are utilized in compliance with the following:

(i) The telehealth practitioner must be a physician and licensed to practice in New York.

(ii) Telehealth services can only be utilized to fulfill one of the two physician-required activities in a removal or retention action, i.e., either the certifying physician or confirming staff psychiatrist at the emergency hospital site, can perform their required examination, evaluation, or assessment through telehealth technology.

(iv) All physicians must sign the form at whatever location they are at the time of the examination, regardless of whether they are at the originating/spoke site or the distant/hub site. If the telehealth practitioner is the examining physician, a copy of their signed Form OMH 474 must be received in the emergency hospital site before the individual is transported. The telehealth physician may sign their form electronically as permitted by the Electronic Signature and Records Act (ESRA). The transmission of the form may be electronically received, as long as in both instances, the transmission is securely made over an encrypted line or network.

(v) When telehealth services are used as part of a 9.39 retention action, forms amended by the Office of Mental Health to account for the use of such services shall be utilized.

(b) Protocols and Procedures. A provider of services approved to utilize telehealth Services must have written protocols and procedures that address the following:

(1) Each recipient for whom the provision of telehealth services may be offered must be evaluated to determine whether the telehealth modality is appropriate, given the recipient's treatment needs.

(2) Informed Consent: Protocols must afford persons receiving services the opportunity to provide informed consent to participate in any services utilizing telehealth services, including the right to refuse these services and to be apprised of the alternatives to telehealth services, including any delays in service, need to travel, or risks associated with not having the services provided by telehealth, and risks associated with receiving telehealth services in an off-site location. Such informed consent may be incorporated into the informed consent process for in-person care, or a separate informed consent process for telehealth services may be developed and used.

(i) The recipient must be provided with basic information about telehealth services, including both benefits and risks, and shall provide his or her informed consent to participate in services utilizing this technology. For recipients under age 18 for whom informed consent cannot be obtained pursuant to Mental Hygiene Law Section 33.21, such information shall be shared with and informed consent obtained from the recipient's parent or guardian.

(ii) Recipients, or a minor recipient's parent or guardian, shall be informed how to verify a telehealth practitioner's professional license.

(iii) The recipient has the right to refuse to participate in telehealth services, in which case services must be conducted in-person by appropriate clinicians.

(iv) Telehealth sessions shall not be recorded without the recipient's consent, which shall be documented in the clinical record.

(3) Confidentiality: Protocols and procedures must be maintained as required by Mental Hygiene Law Section 33.13 and HIPAA at 45 CFR Parts 160 and 164 and shall apply to both the originating/spoke site and the distant/hub site. Such protocols shall ensure that:

(i) All current confidentiality requirements and protections that apply to written clinical/medical records shall apply to services delivered by telehealth technologies, including the actual transmission of the service, any recordings made during the time of transmission, and any other electronic records.

(ii) The spaces occupied by the recipient at the originating/spoke site, where non-residential, and the practitioner at the distant/hub site must meet the minimum standards for privacy expected for recipient-clinician interaction at a single Office of Mental Health licensed expected for recipient-clinician interaction at a single Office of Mental Health licensed location.

(4) All telehealth services must be conducted via telehealth technologies that meet minimum federal and state requirements, including but not limited to 45 C.F.R. Parts 160 and 164 (HIPAA Security Rules), and which are consistent with guidelines of the Office. Transmissions must employ acceptable authentication and identification procedures by both the sender and the receiver.

(5) Psychiatric emergencies: All telehealth service sites must have a written procedure detailing the availability of in-person assessments in an emergency situation.

(6) Prescribing medications via telehealth: Procedures for prescribing medications through telehealth must be identified and must be in accordance with applicable New York State and federal law, including but not limited to the federal Ryan Haight Act (21 U.S.C. section 823(f), New York State Education Law sections 6902(3)(a)(ii), 7606, 7708, and 8407; and regulations of the New York State Department of Health at 10 NYCRR Part 80.

(7) Recipient rights: Recipient rights policies must ensure that each individual receiving telehealth services:

(i) is informed and made aware of the role and license information of the telehealth practitioner at the distant/hub site, as well as staff at the originating/spoke site, where non-residential, who are responsible for follow-up or on going care;

(ii) is informed and made aware of the location of the distant/hub site and all questions regarding the equipment, the technology, etc., are addressed;

(iii) has the right to have appropriately trained staff immediately available to him/her while receiving the telehealth service to attend to emergencies or other needs;

(iv) has the right to be informed of all parties who will be present at each end of the telehealth transmission; and

(v) if the recipient is a minor, the recipient and his or her parent or guardian shall be given the opportunity to provide input regarding who will be in the room with the recipient when telehealth services are provided.

(8) Quality of Care: All telehealth service sites shall have established written quality of care protocols to ensure that the services meet the requirements of New York State and federal laws and established recipient care standards. A review of telehealth services shall be included in the provider's quality management process.

(9) Contingency Plan: All telehealth service sites must have a written procedure detailing the contingency plan when there is a failure of the transmission or other technical difficulties that render the service undeliverable.

(10) Ownership and Maintenance of Records:

(i) The program in which the recipient is admitted shall be responsible for obtaining and maintaining a complete clinical record as if the recipient were seen in-person at such site.

(ii) The telehealth practitioner must have immediate access to the recipient health record.

(iii) The distant/hub site shall maintain copies of all documentation completed by the distant/hub telehealth practitioner unless the telehealth practitioner records the information directly within the originating/spoke site's electronic medical record system.

The Office shall develop guidelines to assist providers in complying with the provisions of this Part and in achieving treatment goals through the use of telehealth Services. The Office shall post such guidelines on its public website.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.7 Reimbursement for Telehealth Services

(a) The licensed, designated, or authorized provider of service where the recipient is admitted is authorized to bill Medicaid for telehealth services.

(b) Under the Medicaid program, telehealth services are covered when medically necessary and under the following circumstances:

(1) the person receiving services is located at the originating/spoke site;

(2) the telehealth practitioner is located at the distant/hub site and is employed by or contracted with a program licensed or designated by the Office;

(3) the person or collateral receiving services is present during the encounter;

(4) the request for telehealth services and the rationale for the request are documented in the individual's clinical record;

(5) the clinical record includes documentation that the encounter occurred; and

(6) the telehealth practitioner at the distant/hub site is:

(i) authorized in New York State;

(ii) practicing within his/her scope of specialty practice; and

(iii) if the originating/spoke site is a hospital, credentialed and privileged at the originating/spoke site facility.

(c) Audio-only or audio-video communication is covered by Medicaid and the Child Health Insurance Plan to the extent consistent with regulations promulgated by the New York State Commissioner of Health pursuant to Section 2999-cc of the Public Health Law.

(d) The following interactions do not constitute reimbursable telehealth services;

(1) e-mail messages;

(2) text messages; or

(3) facsimile transmission.

(e) Reimbursement for services provided via telehealth must be in accordance with the rates and fees established by the Office and approved by the Director of the Budget. Such rates or fees shall be the same for identical procedures provided by practitioners in-person, in the same location as the recipient unless otherwise established by the Office.

(f) If a telehealth service is undeliverable due to a failure of transmission or other technical difficulty, reimbursement shall not be provided.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 596.8 Contracts for the Provision of Telehealth Services

(a) Nothing in this Part shall be deemed to prohibit a provider of services from providing licensed, designated, and authorized services, consistent with applicable regulations of the Office, as a distant/hub site via telehealth pursuant to contract with an originating/spoke site provider that is not licensed or operated by the Office, but which is enrolled in the New York State Medicaid program.

(b) Although prior approval of the Office is not required before entering into such contracts, notice of such contracts or agreements shall be provided by the distant/hub provider of services within 30 days after execution of such contract to the Field Office serving the area where such provider of services is located.

(c) Reimbursement for telehealth services shall be pursuant to such contracts and are not separately billable by the distant/hub site.

(d) Providers of service shall not engage in distant/hub telehealth services that violate the provisions of paragraph (11) of subdivision (a) of section 596.6 of this Part.

History

Adopted New York State Register August 31, 2016/Volume XXXVIII, Issue 35, eff. 8/31/2016

Part 598 Integrated Outpatient Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.2 Legal base

(a) Office of Mental Health.

(1) Section 7.09 of the Mental Hygiene Law (MHL) grants the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(2) Section 7.15 of the MHL charges the Commissioner of Mental Health with the responsibility for planning, promoting, establishing, developing, coordinating, evaluating and conducting programs and services of prevention, diagnosis, examination, care, treatment, rehabilitation, training, and research for the benefit of persons with mental illness. Such law further authorizes the commissioner to take all actions that are necessary, desirable, or proper to carry out the statutory purposes and objectives of the Office of Mental Health, including undertaking activities in cooperation and agreement with other offices within the Department of Mental Hygiene, as well as with other departments or agencies of State government.

(3) Section 31.04 of the MHL authorizes the Commissioner of Mental Health to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for adults diagnosed with mental illness or children diagnosed with emotional disturbance, pursuant to an operating certificate.

(4) Sections 31.07, 31.09, 31.13, and 31.19 of the MHL authorize the Commissioner of Mental Health or his or her representatives to examine and inspect such programs to determine their suitability and proper operation. Section 31.16 authorizes such commissioner to suspend, revoke or limit any operating certificate, under certain circumstances.

(5) Section 31.11 of the MHL requires every holder of an operating certificate to assist the Office of Mental Health in carrying out its regulatory functions by cooperating with the Commissioner of Mental Health in any inspection or investigation, permitting such commissioner to inspect its facility, books and records, including recipients' records, and making such reports, uniform and otherwise, as are required by such commissioner.

(6) Article 33 of the MHL establishing basic rights of persons diagnosed with mental illness.

(7) Sections 364 and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.

(b) Department of Health.

Section 2803 of the Public Health Law (PHL) authorizes the Public Health and Health Planning Council to adopt and amend rules and regulations, subject to the approval of the commissioner, to implement the provisions of PHL article 28, and to establish minimum standards governing the operation of health care facilities.

(1) Section 19.07 (c) of the Mental Hygiene Law (MHL) charges the Commissioner of the Office of Alcoholism and Substance Abuse Services with the responsibility to ensure that persons who abuse or are dependent on alcohol and/or substances and their families are provided with care and treatment that is effective and of high quality.

(2) Section 19.07(e) of the MHL authorizes the Commissioner of the Office of Alcoholism and Substance Abuse Services to adopt standards including necessary rules and regulations pertaining to chemical dependence treatment services.

(3) Section 19.09(b) of the MHL authorizes the Commissioner of the Office of Alcoholism and Substance Abuse Services to adopt regulations necessary and proper to implement any matter under his/her jurisdiction.

(4) Section 19.21(b) of the MHL requires the Commissioner of the Office of Alcoholism and Substance Abuse Services to establish and enforce regulations concerning the licensing, certification, and inspection of chemical dependence treatment services.

(5) Section 19.21(d) of the MHL requires the Office of Alcoholism and Substance Abuse Services to establish reasonable performance standards for providers of services certified by the office.

(6) Section 19.40 of the MHL authorizes the Commissioner of the Office of Alcoholism and Substance Abuse Services to issue operating certificates for the provision of chemical dependence treatment services.

(7) Section 32.01 of the MHL authorizes the Commissioner of the Office of Alcoholism and Substance Abuse Services to adopt any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by article 32 of the MHL.

(8) Section 32.07(a) of the MHL authorizes the Commissioner of the Office of Alcoholism and Substance Abuse Services to adopt regulations to effectuate the provisions and purposes of article 32 of the MHL.

(9) Section 32.05(b) of the MHL provides that a controlled substance designated by the Commissioner of Health as appropriate for such use may be used by a physician to treat a chemically dependent individual pursuant to section 32.09(b) of the MHL.

(10) Section 32.09(b) of the MHL provides that the Commissioner of the Office of Alcoholism and Substance Abuse Services may, once a controlled substance is approved by the Commissioner of Health as appropriate for such use, authorize the use of such controlled substance in treating a chemically dependent individual.

(d) Pursuant to section 365-1(7) of the Social Services Law and part L of chapter 56 of the Laws of 2012, the Commissioners of the Office of Mental Health, Office of Alcoholism and Substance Abuse Services and Department of Health are jointly authorized to establish operating, reporting and construction requirements, as well as joint survey requirements and procedures for entities operating under the auspices of one or more such agencies in order to integrate the delivery of health and behavioral health services in an efficient and effective manner.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.3 Applicability

(a) The provisions of this Part shall apply to providers seeking approval to provide integrated care services at a single outpatient site (host site). This includes:

(1) locations licensed under article 28 of the PHL as diagnostic and treatment centers, extension clinics as defined in 10 NYCRR section 401.1(g), and general hospital outpatient programs as defined by this Part;

(2) substance use disorder outpatient services certified under MHL article 32; and

(3) clinic treatment programs licensed under MHL article 31.

(b) The standards apply to providers certified or licensed by at least two of the said participating agencies or in the process of pursuing licensure or certification by the Department of Health, the Office of Mental Health, or the Office of Alcoholism and Substance Abuse Services.

(c) The requirements of this Part shall be in addition to the requirements of the State agency that licensed or certified the proposed host site.

(d) An integrated services provider shall continue to ensure documentation as required per 18 NYCRR sections 504.3, 517.3(b), 518.1(c), and 518.3(b).

(e) Integrated services providers of mental health services shall continue to ensure compliance with 14 NYCRR Part 599.

(f) Integrated services providers of substance use disorder services shall continue to ensure compliance with 18 NYCRR Part 822.

(g) With respect to billing for medical assistance, an integrated services provider shall continue to ensure compliance with 18 NYCRR sections 540.6(a) and 540.6(e).

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.4 Definitions

For the purposes of this Part:

(a) Behavioral health care means care and treatment of mental illness and/or substance use disorders.

(b) Diagnostic and treatment center means a medical facility as defined in 10 NYCRR section 751.1 or an extension clinic as defined in 10 NYCRR section 401.1(g).

(c) Governing authority means the entity that substantially controls the operator or provider of services to which a State licensing agency has issued an operating certificate. The governing authority is the body possessing the right to appoint and remove directors or officers, to approve bylaws and other organizational documents, to approve strategic or financial plans for a provider of services, or to approve operating or capital budgets for a provider of services.

(d) General hospital outpatient program means a distinct part or unit within a general hospital as defined by section 2801 (10) of the Public Health Law through which outpatient services, other than hospital-based ambulatory surgery services, are provided.

(e) Host site means a single outpatient site at which a provider who is licensed or certified by the Department of Health, the Office of Mental Health, or the Office of Alcoholism and Substance Abuse Services is approved to provide integrated care services pursuant to this Part.

(f) Integrated care services means the systematic coordination of evidence-based physical and behavioral health care in clinics licensed by one or more State licensing agencies in order to promote health and better outcomes, particularly for populations at risk.

(g) Integrated services provider means a provider holding multiple operating certificates or licenses to provide outpatient services, who has also been authorized by a commissioner of a State licensing agency to deliver identified integrated care services at a specific site in accordance with the provisions of this Part.

(h) Medical director is a physician who is responsible for the medical services provided by the integrated services provider, for the overall direction of the medical procedures provided and the direct supervision of medical staff in the performance of medical services.

(i) Outpatient services means clinic services provided by a diagnostic and treatment center or general hospital outpatient program pursuant to PHL article 28, a mental health clinic licensed pursuant to MHL article 31, or a substance use disorder clinic licensed pursuant to MHL article 32.

(j) Primary care services means services provided by a physician, nurse practitioner, or midwife acting within his or her lawful scope of practice under title VIII of the Education Law and who is practicing primary care.

(k) State licensing agency means the State agency with statutory authority to license or certify a provider of outpatient services and designated in accordance with the provisions of this Part with responsibility to monitor compliance by an integrated services provider with the provisions of this Part. State licensing agency is limited to the Department of Health, the Office of Mental Health, or the Office of Alcoholism and Substance Abuse Services, as applicable.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.5 Integrated care models

Integrated services providers will be approved by the appropriate State licensing agency and designated to deliver integrated care services as one of the following models:

(a) Primary care host model.

Given the recognition that the general health care system can serve as a gateway to the behavioral health care system, treatment for substance use disorder and/or mental illness is integrated into a single outpatient physical health setting. In this model, a diagnostic and treatment center or a general hospital outpatient program shall be the host site and the Department of Health shall be responsible for monitoring compliance of an integrated services provider with the provisions of this Part.

(b) Mental health behavioral care host model.

Given that persons with mental health disorders frequently have a co-occurring substance use disorder and/or also experience chronic illnesses, treatment for substance use disorder and/or physical health is integrated into a single outpatient mental health setting. In this model, an article 31 clinic treatment program shall be the host site and the Office of Mental Health shall be responsible for monitoring compliance of an integrated services provider with the provisions of this Part.

Given that persons with substance use disorders frequently have a co-occurring mental health disorder and/or also experience chronic illnesses, treatment for mental illness and/or physical health is integrated into a single outpatient substance use disorder treatment setting. In this model, an article 32 substance use disorder outpatient treatment clinic shall be the host site and the Office of Alcoholism and Substance Abuse Services shall be responsible for monitoring compliance of an integrated services provider with the provisions of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.6 Organization and administration

(a) A provider may promote itself as an integrated services provider if tlie provider lias been properly certified by an appropriate State licensing agency, pursuant to this Part.

(b) Governing authority.

(1) The established governing authority shall be legally responsible for the quality of patient care services, for the conduct and obligations of the integrated services provider and for ensuring compliance with all Federal, State and local laws, including the New York State Public Health Law, Mental Hygiene Law, and the Education Law.

(2) In order to achieve and maintain generally accepted standards of professional practice and patient care services, the governing authority shall establish, cause to implement, maintain and, as necessary, revise its practices, policies and procedures for the ongoing evaluation of the services operated or delivered by the integrated services provider and for the identification, assessment and resolution of problems that may develop in the conduct of the program.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.8 Policies and procedures

An integrated services provider shall have written policies, procedures, and methods governing the provision of services to patients, including a description of each service provided. These policies, procedures, and methods shall be reviewed annually and revised as necessary. They shall address, at a minimum, the following:

(a) admission criteria;

(b) evaluations and treatment plans;

(d) the provision of medical services, including screening and referral for associated physical or behavioral health conditions;

(e) how to ensure prompt follow-up action on patients with abnormal test results or physical findings;

(f) identification of specific support and ancillary providers, where appropriate, and methods for coordinating such service delivery;

(g) appropriate transfer and referral procedures to and from other services;

(h) discharge criteria;

(i) procedures for handling patient emergencies and identification of available off-hour emergency services seven days per week, 24 hours per day, including, but not limited to, detoxification, withdrawal and acute psychiatric services;

(j) how to ensure that staff are prepared to care for emergencies in accordance with the services provided at the host site, and necessary emergency equipment is maintained in working order;

(k) the continuity of care, including regular participation of all integrated care services staff in case conferences, in-service training and staff meetings;

(l) the prescription and administration of medication which shall be consistent with applicable Federal and State laws and regulations;

(m) for providers providing primary care, policies and procedures for investigating, controlling and preventing infections in the host site. The policies and procedures shall include those for:

(1) isolating patients with communicable or infectious diseases or patients suspected of having such diseases;

(2) training all personnel rendering care to such patients in the employment of standard infection control techniques;

(3) obtaining periodic reports of health care associated infections (health care associated infections shall include an increased incidence or outbreak of disease due to biological, chemical or radioactive agents or their toxic products occurring in patients or persons working in the host site); and

(4) reporting immediately to the Department of Health, in a manner specified by the Commissioner of Health, the presence of health care associated infections, and to the city, county or district health officer where the host site is located, the presence of any communicable disease as defined in 10 NYCRR section 2.1 (State Sanitary Code);

(n) public health education and screening with regard to tuberculosis, sexually transmitted diseases, hepatitis, and HIV/AIDS prevention and harm reduction; and

(o) the requirement of the mandatory offer of HIV testing in accordance with section 2781-a of article 27-F of the Public Health Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.11 Quality assurance, utilization review and incident reporting

(a) Quality assurance.

(1) Primary care services.

(i) Integrated services providers wliicli provide primary care sliall ensure tlie development and implementation of a written quality assurance program that includes a planned and systematic process for monitoring and assessing the quality and appropriateness of patient care and clinical performance on an ongoing basis. The integrated care services program shall resolve identified problems and pursue opportunities to improve patient care.

(ii) The integrated services program shall be supervised by the medical director. This responsibility may not be delegated.

(ill) There shall be a written plan for the quality assurance program which describes the program's objectives, organization, responsibilities of all participants, scope of the program and procedures for overseeing the effectiveness of monitoring, assessing and problem-solving activities.

(iv) The quality assurance plan shall define methods for the identification and selection of clinical and administrative problems to be reviewed. The plan shall include but not be limited to:

(a) the establishment of review criteria developed in accordance with current standards of professional practice for monitoring and assessing patient care and clinical performance;

(b) regularly scheduled reviews of medical charts, patient complaints and suggestions, reported incidents and other documents pertinent to problem identification;

(c) documentation of all quality assurance activities, including but not limited to the findings, recommendations and actions taken to resolve identified problems; and

(d) the timely implementation of corrective actions and periodic assessments of the results of such actions.

(v) The scope of clinical and administrative problems selected to be reviewed for the purpose of quality assurance shall reflect the scope of services provided and the populations served at the center.

(vi) The outcomes of quality assurance reviews shall be used for the revision or development of policies and in granting or renewing staff privileges, as appropriate.

(vii) There shall be participation in the quality assurance program by administrative staff and health-care professionals representing each professional service provided.

(viii) There shall be joint participation in the quality assurance program by representatives from the behavioral health components of an integrated care services program; such participation shall include, but is not limited to, specific identification of quality improvement opportunities with respect to patient concerns and complaints, changes in regulatory requirements, or other factors, no less frequently than once every two years. Documentation shall be kept of all such reviews.

(ix) The findings, conclusions, recommendations and actions taken as a part of the quality assurance program shall be reported to the operator by the medical director. An annual report shall be submitted to the governing authority, which documents the effectiveness and efficacy of the integrated care services program in relation to its goals and quality assurance plan and indicate any recommendations and plans for improvement it its services to patients, as well as recommend changes in its policies and procedures.

(2) Behavioral health services.

(i) Integrated services providers which provide mental health and/or substance use disorder services shall comply with all requirements of 599 or 822 of this Title, as applicable, relating to quality assurance.

(ii) Integrated services providers of mental health and/or substance use disorder services shall prepare an annual report and submit it to its governing authority. This report must document the effectiveness and efficiency of the ambulatory care program in relation to its goals and quality assurance plan and indicate any recommendations and plans for improvement in its services to patients, as well as recommended changes in its policies and procedures.

(iii) Utilization review.

(a) Integrated services providers of mental health and/or substance use disorder services shall establish and implement a utilization review plan. The utilization review plan must include participation by all primary care and behavioral health components of the integrated services provider, as applicable.

(b) Integrated services providers of mental health and/or substance use disorder services may use a utilization review process developed by the State licensing agency or may develop its own utilization review process that is subject to approval by the State licensing agency.

(c) Integrated services providers of mental health and/or substance use disorder services may perform its utilization review process internally; or it may enter into an agreement with another organization, competent to perform utilization review, to complete its utilization review process.

(d) Utilization review must be conducted by at least one clinical staff member. No member shall participate in utilization review decisions relative to any patient he or she is treating directly.

(e) The utilization review plan must include procedures for ensuring that retention criteria are met and services are appropriate. The utilization review plan must consider the needs of a representative sample of patients for continued treatment, the extent of the behavioral health problem, and the continued effectiveness of, and progress in, treatment. At a minimum, utilization review must include separate random samples based upon a patient's length of stay, with larger samples for patients with longer lengths of stay. Utilization review must also be conducted for all active cases within the 12th month after admission and every 90 days thereafter.

(f) Documentation of utilization review must be maintained providing evidence that the deliberations:

(1) were based on current progress in treatment relative to the applicable functional areas identified in the patient's comprehensive treatment/recovery plan;

(2) determined the appropriateness of continued stay at the outpatient level of care and intensity of services, as well as whether co-occurring disorder(s) require referral to outside services;

(3) determined the reasonable expectation of progress towards the accomplishment of the goals and objectives articulated in the patient's treatment/recovery plan, based on continued treatment at this level of care and intensity of services; and

(4) resulted in a recommendation regarding continuing stay, intensity of care and/or referral of this case.

(b) Incident reporting.

(1) Mental health behavioral care host providers shall report incidents involving patients receiving mental health services in accordance with the provisions of Part 524 of this Title.

(2) Substance use disorder behavioral care host providers shall report incidents involving patients receiving substance use disorder services in accordance with the provisions of Part 836 of this Title.

(3) Primary care host providers shall report incidents in accordance with the provisions of 10 NYCRR section 405.8 or 10 NYCRR section 751.10, as applicable.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.13 Recordkeeping

(a) An integrated services provider shall maintain a record of all integrated care services provided to an individual who is admitted to and treated by such provider, and this may be accomplished via a single integrated record for the individual.

(b) Regardless of form or format, each integrated services provider shall establish a recordkeeping system which is maintained in accordance with recognized and accepted principles of recordkeeping.

(c) Each integrated services provider shall designate a staff member who has overall supervisory responsibility for the recordkeeping system. The recordkeeping supervisor shall ensure that:

(1) the integrated care record for each patient contains and centralizes all physical and behavioral health information which identifies the patient, justifies the treatment and documents the results of such treatment;

(2) entries in the integrated care record are current, legible to individuals other than the author, are authenticated with a signature of the person making the entry, date, and time;

(3) handwritten entries must be made in permanent, non-erasable blue or black ink or typed;

(4) information contained in the integrated care record is securely maintained, kept confidential, safeguarded from environmental damage, and made available only to authorized persons who have a need to know the information; and

(5) when a patient is treated by an outside provider, and that treatment is relevant to the patient's care, a clinical summary or other pertinent documents are obtained to promote continuity of care; if documents cannot be obtained, the reason must be noted in the integrated care record.

(d) The integrated care record format shall facilitate the ability to record the following information for each patient, as relevant:

(1) patient basic demographic information;

(2) patient physical health and behavioral health history:

(i) Physical health information:

(a) physical examination reports;

(b) diagnosis or medical impression;

(d) medical orders and anesthesia record;

(e) immunization and drug history; and

(f) notation of allergic or adverse reactions to medications;

(ii) Mental health information:

(a) diagnosis or diagnostic impression;

(b) psychosocial assessment; and

(iii) Substance use information:

(a) (a) diagnosis or diagnostic impression;

(b) substance use disorder assessment, including the use of tobacco;

(d) substance use disorder treatment history including prior periods of sustained recovery and how such recovery was supported;

(3) admission note;

(4) assessment of the patient's goals regarding basic treatment goals and needs;

(5) treatment plan and applicable reviews;

(6) dated progress notes that relate to goals and objectives of treatment;

(7) discharge plan;

(8) documentation of the services provided and any referrals made;

(9) discharge summary;

(10) dated and signed records of all medications prescribed by the clinic and other prescription medications being used by the patient, if applicable;

(11) consent forms, if applicable; and

(12) record of contacts with collaterals if applicable.

(e) Patient case records must be retained for a minimum period of six years from the date of the last service provided to a patient or, in the case of a minor, for at least six years after the last date of service or three years after he/she reaches majority whichever time period is longer.

(f) Confidentiality.

(1) Notwithstanding any other New York State regulation, in cases where component providers of an integrated care services program are governed by different State or Federal laws and regulations protecting clinical records and information, the integrated care record shall be governed by the State and Federal privacy rules and regulations that give the most protection to the record, unless it is possible to redact provisions of the record with more protection without compromising the purpose for which the record is being disclosed.

(2) An integrated care services program providing substance use disorder services must obtain patient consent prior to making any disclosures from the integrated care record, unless the disclosure is authorized as an exception pursuant to Federal regulations.

(3) AIDS and HIV information shall only be disclosed in accordance with article 27-F of the Public Health Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.14 Application and approval

Application and approval process.

(a) Providers that possess at least two licenses/certificates from at least two separate State licensing agencies and are seeking approval to integrate services for which they are licensed or certified may submit an application to the State licensing agency of the host site.

(b) Applications shall be submitted in a format prescribed for all applicants and reviewed by the State licensing agency that regulates the services to be added, in conjunction with the State licensing agency with authority for the host clinic, as appropriate.

(1) licensed or certified by the relevant State licensing agencies to provide services for which the provider is seeking to integrate;

(2) in compliance with all applicable requirements of the relevant State licensing agencies;

(3) in good standing at the time of application approval. A provider is in good standing if each clinic site for which the provider is licensed or certified to offer services:

(i) is licensed by the Office of Mental Health and has a one year or greater time frame on operating certificate (Tier 3 providers are not eligible to participate); and/or

(ii) is certified by the Office of Alcoholism and Substance Abuse Services and all of its programs have an operating certificate with partial or substantial compliance (two or three years); and/or

(iii) has an operating certificate from the Department of Health and not currently under any enforcement actions;

(4) in compliance with the physical plant requirements under this Part; and

(5) a member of a health home designated by the Commissioner of Health pursuant to section 365-l of the Social Services Law.

(d) Applications may include but not be limited to requests for information regarding services to be added and the plan for implementation, staffing, operating expenses and revenues, and utilization of services as they relate to integrated care services as described in this Part.

(e) The applicant shall supply any additional documentation or information requested by the State licensing agency of the host site, in conjunction with the other State licensing agencies as appropriate, within a stated timeframe of such request, unless an extension is obtained. The granting of a request for an extension shall be at the discretion of such State licensing agency of the host site. Failure to provide the additional documentation or information within the time prescribed shall constitute an abandonment or withdrawal of the application without any further action from the State licensing agency.

(f) The affected State licensing agency shall approve or disapprove an application in writing.

(g) Applicants may appeal the denial of an application in accordance with the rules and regulations of the affected State licensing agency.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 598.15 Inspection

(a) The State licensing agency witli autliority for tlie liost clinic shall have ongoing inspection responsibility for the integrated services clinic, pursuant to this Part. The purpose of the inspection is to ensure compliance with all applicable laws, rules, and regulations, as well as to determine the renewal term of the operating certificate or license, as applicable. Inspection activities shall not be duplicated.

(b) The host State licensing agency shall consult with the adjunct State licensing agency on matters specific to the provision of such add-on services, as may be necessary to assure patient health and safety. Any significant deficiencies will immediately be referred for enforcement to the responsible State licensing agency. If at any point during the inspection, findings are identified that suggest imminent risk of serious harm or injury to patients, the inspector(s) will immediately contact their supervisor, who will consult with the adjunct State licensing agency, as applicable.

(c) Inspections shall be conducted utilizing a joint-licensing instrument, eloped collaboratively by the three State licensing agencies. This standardized procedure will ensure consistency of the inspection process throughout the State and provide standardized reviews of the operations and services at each integrated services clinic. All deficiencies and/or corrective action will be overseen by the monitoring State licensing agency with notice to the adjunct State licensing agency or agencies, as applicable.

(d) Each integrated services provider shall undergo an unannounced inspection which will occur prior to renewal of the operating certificate or license.

(1) At the start of the inspection, the inspector(s) will meet with integrated services clinic administrative staff to explain the purpose and scope of the inspection and request any documentation (e.g., policies; staffing information; etc.) that may be needed to facilitate the review.

(2) The inspection will include, but not be limited to, the following areas of review:

(i) on-site inspection of clinic appearance, conditions and general safety;

(ii) evaluation of the sponsor, its management systems, and procedures;

(ill) patient case record review;

(iv) interviews of staff and patients;

(v) examination of staffing patterns and staff qualifications;

(vi) analysis of statistical information contained in reports required to be submitted by the clinic;

(vii) compliance with the reporting requirements;

(viii) verification of staff credentials, as applicable;

(ix) incident reporting requirements; and

(x) such other operating areas of activities as may be necessary or appropriate to determine compliance with applicable laws and regulations.

(3) At the conclusion of the inspection, the inspector(s) will meet with integrated services clinic administrative staff to discuss all deficiencies identified during the inspection.

(e) Upon completion of the inspection, a written report will be provided to the integrated services clinic which describes the results of the inspection, including each regulatory deficiency identified, if any. The provider of services shall take all actions necessary to correct all deficiencies reported. The provider of services shall submit a plan of correction to the State licensing agency with authority for the host clinic within 30 days, which states the specific actions taken or planned to achieve compliance with identified requirements. Any planned actions described in the plan of correction must be accompanied with a timetable for their implementation.

(f) If the provider of services fails, within the specified or an otherwise reasonable time, to correct any reported deficiencies, or fails to maintain satisfactory compliance with applicable laws, rules and regulations, the commissioner of the State licensing agency with authority for the host clinic may revoke, suspend or limit the operating certificate or license or levy a civil fine for such failures, in accordance with applicable regulations.

(g) Concurrently, each integrated services clinic shall undergo a fiscal viability review which will include an assessment of the financial information of the provider of services. Such information shall be submitted in intervals and in a form prescribed by the State licensing agency with authority for the host clinic, for compliance with minimum standards established by the State licensing agency, in order to determine the provider's fiscal capability to effectively support the authorized services.

(h) Providers of services that fail to meet the minimum standards of the State licensing agency with authority for the host clinic shall be required to submit a corrective action plan setting forth the specific actions to be taken to meet the minimum standards within a reasonable time frame.

Part 599 Clinic Treatment Programs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.1 Background and intent

(a) This Part establishes standards for the certification, operation and reimbursement of Mental Health Outpatient T reatment and Rehabilitative Service programs, serving adults and children. Mental Health Outpatient Treatment and Rehabilitative Service programs serving adults serve individuals 18 years of age and older with a diagnosis of mental illness. Mental Health Outpatient Treatment and Rehabilitative Service programs serving children serve individuals up to 21 years of age and may include 21-year old individuals while such individuals are currently admitted to a Mental Health Outpatient Treatment and Rehabilitative Service program serving children with a diagnosis of emotional disturbance. Mental Health Outpatient T reatment and Rehabilitative Service programs may serve both adults and children. It is the intent of OMH to expand a Mental Health Outpatient Treatment and Rehabilitative Service program's option to provide peer support services, and off-site services

(b) The goals of a Mental Health Outpatient Treatment and Rehabilitative Service program that serves adults are to diagnose and treat an individual's mental illness, to work with the individual in developing a treatment plan designed to minimize symptoms and adverse effects of illness, maximize wellness, and promote recovery toward the achievement of life goals such as, but not limited to, education and employment.

(c) The goals of a Mental Health Outpatient Treatment and Rehabilitative Service program that serves children are early assessment and identification of childhood emotional disturbances, and engagement of the child and family in the development of a treatment plan designed to minimize the symptoms and adverse effects of illness and prevent their progression, maximize wellness, assist the child in developing a resilient and hopeful approach to school, family, and community, and maintain the child in their natural environment.

(d) This Part supersedes Parts 587 and 588 of this Title as they relate to Mental Health Outpatient Treatment and Rehabilitative Services operated by or under the auspices of the Office of Mental Health, except where specifically noted in this Part. 14 NYCRR 599.2

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.2 Legal base

(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 their jurisdiction, and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for adults diagnosed with mental illness or children diagnosed with emotional disturbance, pursuant to an operating certificate.

(b) Section 31.02 of the Mental Hygiene Law prohibits the operation of outpatient programs providing services for persons with mental illness unless an operating certificate has been obtained from the Commissioner.

(c) Sections 31.07, 31.09, 31.13 and 31.19 of the Mental Hygiene Law further authorize the Commissioner or their representatives to examine and inspect such programs to determine their suitability and proper operation. Section 31.16 authorizes the Commissioner to suspend, revoke or limit any operating certificate, under certain circumstances.

(d) Section 31.11 of the Mental Hygiene Law requires every holder of an operating certificate to assist the Office of Mental Health in carrying out its regulatory functions by cooperating with the Commissioner in any inspection or investigation, permitting the Commissioner to inspect its facility, books and records, including an individual's records, and making such reports, uniform and otherwise, as are required by the Commissioner.

(e) Section 31.06 of the Mental Hygiene Law requires every holder of an operating certificate to develop policies and training programs in regard to reporting child abuse or neglect.

(f) Section 43.02 (b) of the Mental Hygiene Law authorizes the Commissioner to request from operators of facilities licensed by the Office of Mental Health such financial, statistical and program information as the Commissioner may determine to be necessary.

(g) Article 33 of the Mental Hygiene Law establishes basic rights of persons diagnosed with mental illness.

(h) Section 364-j of the Social Services Law requires the establishment of managed care programs throughout the State and provides for the provision of special care services to enrollees in Medicaid managed care programs who require such services.

(i) Sections 364 and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.

(j) Section 43.01 of the Mental Hygiene Law gives the Commissioner authority to set rates for outpatient services at facilities operated by the Office of Mental Health. Section 43.02 of the Mental Hygiene Law provides that payments under the medical assistance program for outpatient services at facilities licensed by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Budget.

(k) Title XIX of the Federal Social Security Act, as identified in section 1901 of such Title, authorizes Federal grants to states to fund medical assistance to needy persons in accordance with a State plan approved by the Federal Department of Health and Human Services.

(l) Article 41 of the Mental Hygiene Law gives the Local Governmental Unit the authority to direct and administer a local comprehensive planning process for its geographic area in which all providers of service shall participate and cooperate through the development of integrated systems of care and treatment for persons with mental illness.

(m) Section 41.13 of the Mental Hygiene Law establishes the powers and duties of the Local Governmental Unit.

(n) Section 365-m of the Social Services Law authorizes the Commissioner of the Office of Mental Health and the Commissioner of the Office of Alcoholism and Substance Abuse Services, in consultation with the Department of Health, to contract with regional behavioral health organizations to provide administrative and management services for the provision of behavioral health services.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.3 Applicability

(a) This Part applies to any provider of service that operates or proposes to operate a Mental Health Outpatient Treatment and Rehabilitative Service program in which staff is assigned on a regular basis to provide services for the treatment of adults with a diagnosis of mental illness or children with a diagnosis of emotional disturbance.

(b) This Part applies to Mental Health Outpatient Treatment and Rehabilitative Service Programs, Diagnostic and Treatment Centers and hospital-based Mental Health Outpatient Treatment and Rehabilitative Service Programs, as defined in this Part.

(c) This Part does not apply to the following activities which do not require an operating certificate issued by the Office:

(1) professional practice, on an individual or partnership basis, within the scope of professional licensure or certificate issued by an agency of the State;

(2) professional practice by a professional service corporation duly incorporated pursuant to the Business Corporation Law;

(3) pastoral counseling by a clergyman or minister as defined in section 2 of the Religious Corporation Law;

(4) non-residential services that are provided in accordance with licensure or other supervision by a State agency other than the Office;

(5) non-residential services that are provided in accordance with purposes authorized in a charter or certificate of incorporation issued pursuant to the Education Law; and

(6) designated partial capitation programs, including the Pre-Paid Mental Health Plan operated by the Office.

(d) Programs which provide medical services, other than health monitoring and health screening, that comprise more than five percent of total annual visits shall also be licensed by the Department of Health.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.5 Certification

(a) A provider of service intending to operate a Mental Health Outpatient Treatment and Rehabilitative Program must obtain an initial operating certificate issued by the Office in accordance with procedures established in Part 551 of this Title. Renewals of such operating certificates shall be issued for terms of up to three years.

(b) Each Mental Health Outpatient Treatment and Rehabilitative Service program site shall be authorized by a separate operating certificate. The operating certificate shall specify for each site:

(1) the program type (Mental Health Outpatient Treatment and Rehabilitative Service program) to be operated;

(2) the location of the program;

(3) the hours of operation of the program;

(4) the population to be served;

(5) the term of the operating certificate; and

(6) any approved optional services to be provided.

(c) Each Mental Health Outpatient Treatment and Rehabilitative Service program authorized by an operating certificate pursuant to this Part shall be clearly identifiable. Each Mental Health Outpatient Treatment and Rehabilitative Service program shall have sufficient program space to provide safety, and to allow for a reasonable degree of privacy consistent with the effective delivery of services. Program space may be shared with other programs, pursuant to a plan approved by the Office. Nonprogram space, including but not limited to waiting rooms, restrooms, may be shared with other programs.

(d) Mental Health Outpatient Treatment and Rehabilitative Service programs may provide services at satellite locations.

(1) To the extent that such services are provided in a given location on a regularly and routinely scheduled basis (full or part time), such site shall be considered a satellite location and shall be in compliance with this section.

(2) In determining the regular and routine nature of services at a given site, the Office shall take into consideration the volume of services, the number of individuals receiving services, the number of staff assigned, the range of services provided, and whether the site will be utilized on a permanent or temporary basis.

(e) Satellite locations which are determined by the Office to be satellite locations of a primary program shall meet the following requirements:

(1) the satellite must be approved and certified by the Office in accordance with procedures established in Part 551 of this Title prior to operation;

(4) satellite locations must meet the physical plant requirements for program space set forth in section 599.12 of this Part.

(f) Establishment of a new program or changes to the operating certificate requires prior approval of the Office in accordance with Part 551 of this Title.

(g) Changes in the hours of operation of a program may be made upon notification to the Office and the Office's determination that the changes will not negatively affect the program, consistent with the provisions of Part 551 of this Title.

(h) An operating certificate may be limited, suspended or revoked by the Office pursuant to Part 503 of this Title. The operating certificate is the property of the Office and as such shall be returned to the Office if it should be revoked.

(i) The provider of service shall frame and display the operating certificate within the Mental Health Outpatient Treatment and Rehabilitative Service program site in a conspicuous place which is readily accessible to the public.

(j) The provider of service shall cooperate with the Office or the local governmental unit during any review or inspection of the Mental Health Outpatient Treatment and Rehabilitative Service program.

(k) The county director of community services shall be responsible for identifying specific licensed Mental Health Outpatient Treatment and Rehabilitative Service programs that may be designated by the Commissioner as specialty Mental Health Outpatient Treatment and Rehabilitative Service programs serving children in accordance with the identified need within the county.

(l) The Commissioner shall have the authority to designate and approve demonstration projects for purposes of examining innovative program and administrative configurations, regulatory flexibility and alternative funding methodologies.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.6 Organization and administration

(1) to meet at least four times a year;

(2) to review, approve and maintain minutes of all official meetings;

(3) to develop an organizational plan which indicates lines of accountability and the qualifications required for staff positions. Such plan may include the delegation of the responsibility for the day-today management of the program to a designated professional who is qualified by training and experience to supervise program staff;

(4) to review the program's compliance with the terms and conditions of its operating certificate, applicable laws and regulations;

(5) to ensure that the design and operation of the program is consistent with and appropriate to the ethnic and cultural background of the population served. This can include ethnic representation on the staff and board and inclusion of culturally and ethnically relevant content in service programs;

(6) to ensure that planning decisions are based upon input from individuals and, where appropriate, their family members;

(i) written criteria for admission, and discharge from the program. Admission policies should include a mechanism for screening individuals at the time of referral and assuring that those referred from inpatient, forensic, or emergency settings, those determined to be at high risk, and those determined to be in urgent need by the Director of Community Services receive services within five business days, and if indicated, are admitted to the Mental Health Outpatient Treatment and Rehabilitative Service program or referred to an appropriate provider of services. The county may establish, subject to the approval of the Office, categories of individuals to be considered in urgent need of services;

(ii) policies and procedures for conducting initial and ongoing risk assessments and for development of plans to address identified areas of elevated risk, including procedures to ensure that any health or mental health issues identified are treated appropriately by the Mental Health Outpatient Treatment and Rehabilitative Service program or that an appropriate referral to a treatment provider and subsequent follow up is made;

(iii) policies and procedures addressing individual/family engagement and retention in treatment, including, at minimum, plans for outreach and re-engagement efforts commensurate with an individual's assessed risk;

(iv) policies and procedures for providing off-site services;

(v) policies to address personal safety of staff and provide appropriate training in de-escalation techniques;

(vi) policies and procedures for age appropriate health monitoring, which describe whether such monitoring will be performed by the provider or, if not, how the provider will seek to ascertain relevant health information. Such policies and procedures must include a requirement that an individual's refusal to provide access to such information be documented in the case record;

(vii) policies and procedures for screening for use of or dependence on alcohol, tobacco or other drugs;

(viii) policies and procedures ensuring that a reasonable effort shall be made to obtain records from prior recent episodes of treatment;

(ix) policies and procedures ensuring that a reasonable effort shall be made to communicate with family members, current service providers, and other collaterals, as appropriate;

(x) written policies and procedures to ascertain whether individuals are currently receiving or are eligible to receive Medicare or Medicaid or other form of reimbursement for services provided. If it is determined that an individual is eligible for any such program but not currently enrolled, the policies and procedures shall include means of facilitating the enrollment of such individual in such program;

(xi) written policies and procedures concerning the prescription and administration of medication which shall be consistent with applicable Federal and State laws and regulations and which includes procedures for ensuring that individuals are receiving prescribed medications and using them appropriately;

(xii) written policies and procedures governing an individual's records which ensure confidentiality consistent with sections 33.13 and 33.16 of the Mental Hygiene Law and 45 CFR parts 160 and 164, and which provide for appropriate retention of such records pursuant to section 599.11 of this Part;

(xiii) written policies and procedures describing an individual grievance process which ensures the timely review and resolution of individual complaints and which provides a process enabling recipients to request review by the Office when resolution is not satisfactory;

(xiv) written personnel policies which guide efforts to reduce disparities in access, quality of care and treatment outcomes for underserved/unserved and/or marginalized populations, including but not limited to: people of color, members of the LBGTQ+ community, older adults, pregnant persons, Veterans, individuals who are hearing impaired, individuals with limited English proficiency, immigrants, individuals with intellectual/developmental disabilities and all justice system-involved populations ;

(xv) written personnel policies which shall prohibit discrimination on the basis of race or ethnicity, religion, disability, gender identity or sexual orientation, marital status, age, documentation status, or national origin, as well as, written policies on affirmative action which are consistent with the affirmative action and equal employment opportunity obligations imposed by title VII of the Civil Rights Act, Federal Executive Order 11246, the Rehabilitation Act of 1973, section 504, as amended, and the Vietnam Era Veteran's Readjustment Act;

(xvi) written policies for the availability of crisis intervention services at all times. After-hours coverage shall include, at a minimum, the ability to provide brief crisis intervention services provided pursuant to a plan approved by the local governmental unit or the Office. Such services shall be provided either directly or pursuant to a Clinical Services Contract. Such contract shall include, at a minimum, provisions assuring that, in the event of a crisis, the nature of the crisis and any measures taken to address such crisis are communicated to the primary clinician or other designated clinician involved in the individual's treatment at the Mental Health Outpatient Treatment and Rehabilitative Service program, or the individual's primary care or other mental health care provider, if known, on the next business day. At the request of the local governmental unit, State-operated Mental Health Outpatient Treatment and Rehabilitative Service programs shall consult with the local governmental unit or units in their service area in the development of such Mental Health Outpatient Treatment and Rehabilitative Service program's crisis response plan;

(xvii) written policies for the performance of Criminal history information reviews required pursuant to Section 31.35 of the Mental Hygiene Law, Sections 424-a and 495 of the Social Services Law, and 14 NYCRR 550. Such reviews shall be conducted in accordance with such laws and regulations and any guidance issued by the Office. All prospective employees, contractors and volunteers who have the potential for, or may be permitted, regular and substantial unsupervised or unrestricted contact with Recipients shall submit to a criminal history information review. All staff with the potential for regular and substantial contact with Recipients in performance of their duties shall submit to clearance by the New York Statewide Central Register of Child Abuse and Maltreatment. Mental Health Outpatient Treatment and Rehabilitative Service program Staff who have not been screened by the New York Statewide Central Register of Child Abuse and Maltreatment shall not perform duties requiring contact with individuals unless there is another staff member present.

(xviii) written policies regarding the selection, supervision, and conduct of students accepted for training in fulfillment of a written agreement between the Mental Health Outpatient Treatment and Rehabilitative Service program and a State Education Department accredited higher education institution, as well as requesting the Office to perform criminal history record checks in accordance with Part 550 of this Title;

(xix) written policies regarding the employment, supervision and privileging of nurse practitioners and physician assistants. Such policies shall ensure that physician assistants have responsibilities related to physical health only. Such policies shall ensure compliance with Part 550 of this Title concerning the requirement for criminal history record checks, for obtaining clearance from the New York State Central Register of Child Abuse and Maltreatment for persons who have the potential for regular and unsupervised or unrestricted contact with children, and for appropriate consideration and confidentiality of such information;

(xx) written policies which shall establish that contracts with third party contractors that are not subject to the criminal history background check requirements established in section 31.35 of the Mental Hygiene Law include reasonable due diligence requirements to ensure that any persons performing services under such contract that will have regular and substantial unsupervised or unrestricted contact with patients of the Mental Health Outpatient Treatment and Rehabilitative Service program do not have a criminal history that could represent a threat to the health, safety, or welfare of the patients of the Mental Health Outpatient Treatment and Rehabilitative Service program, including, but not limited to, the provision of a signed, sworn statement whether, to the best of their knowledge, such person has ever been convicted of a crime in this State or any other jurisdiction; and

(xxi) written policies and procedures regarding the mandatory reporting of child abuse or neglect, reporting procedures and obligations of persons required to report, provisions for taking a child into protective custody, mandatory reporting of deaths, immunity from liability, penalties for failure to report, and obligations for the provision of services and procedures necessary to safeguard the life or health of the child. Such policies and procedures shall address the requirements for the identification and reporting of abuse or neglect regarding recipients who are children, or who are the parents or guardians of children; and

(8) to ensure the establishment and implementation of an ongoing training program for current and new employees and volunteers that addresses the policies and procedures regarding child abuse and neglect described in paragraph (7) of this subdivision.

(d) A provider of service shall ensure that no individual who is otherwise appropriate for admission is denied access to services solely on the basis of having a co-occurring non-mental health diagnosis, or a diagnosis of HIV infection, AIDS, or AIDS-related complex.

(e) The provider of service shall establish mechanisms to ensure that priority access is given to individuals referred to the provider, who are enrolled in an assisted outpatient treatment program established pursuant to section 9.60 of the Mental Hygiene Law, in accordance with the following:

(1) The provider of service shall cooperate with the local governmental unit or the Commissioner, or their authorized representatives, in ensuring priority access by such individuals, and in the development, review and implementation of treatment plans for such individuals.

(2) Prior to discharge by a provider of service of an individual who is also enrolled in an assisted outpatient treatment program, the provider of service shall notify the individual's case manager and the director of the assisted outpatient treatment program for the county.

(3) Any and all related information, reports and data that may be requested by the Commissioner or the local governmental unit shall be furnished by the provider of service. Any requests for clinical records from persons or entities authorized pursuant to section 33.13 or 33.16 of the Mental Hygiene Law, regarding individuals who are the subject of, or under consideration for, a petition for an order authorizing assisted outpatient treatment shall be given priority attention and responded to without delay.

(f) The provider of service shall establish mechanisms to ensure priority access for individuals receiving ACT and transitioning, for continuity of care for such individuals, including the provision of appropriate services and medications, including injectable medications.

(g) The provider of service shall establish mechanisms for the meaningful participation of individuals, family representatives either through direct participation on the governing body, or through the creation of a recipient advisory board. If a recipient advisory board is used, the provider of service shall ensure a mechanism for the recipient advisory board to make recommendations to the governing body.

(h) The provider of service shall develop and make available to recipients and collaterals, a plan which will assure an appropriate response to recipients admitted to the program and their collaterals who need assistance when the program is not in operation. Such plan shall include the ability to speak with a member of the licensed staff of the Mental Health Outpatient Treatment and Rehabilitative Service program or a licensed staff person working under the auspices of the Mental Health Outpatient Treatment and Rehabilitative Service program pursuant to a plan approved by the local governmental unit or, for county-operated providers, by the Office.

(i) A provider of service shall ensure that any Mental Health Outpatient Treatment and Rehabilitative Service program subject to this Part does not:

(1) utilize restraint or seclusion for any purpose, including, but not limited to, as a response to a crisis situation, provided, however nothing in this section shall be construed to prohibit the use of reasonable physical force when necessary to protect the life and limb of any person where alternative procedures and methods have failed ; and

(2) perform electroconvulsive therapy or aversive conditioning therapy for any purpose, including, but not limited to, as a treatment intervention.

(j) A provider of service shall ensure that an individual's participation in research only occurs in accordance with applicable Federal and State requirements.

(k) A provider of service shall ensure the development, implementation and ongoing monitoring of a Risk Management Program that includes the requirements for identification, documentation, reporting, investigation, review, and monitoring of incidents pursuant to the Mental Hygiene Law and Part 524 of this Title.

(l) There shall be emergency procedures including but not limited to an emergency evacuation plan and staff shall be knowledgeable about such procedures.

(m) There shall be a written utilization review procedure to ensure that all recipients are receiving appropriate services and are being served at an appropriate level of care. Such utilization review procedure shall provide for:

(1) a review of the appropriateness of admission to a Mental Health Outpatient Treatment and Rehabilitative Service program; and

(2) a review of the need for continued treatment in a Mental Health Outpatient Treatment and Rehabilitative Service program within seven months after admission and every six months thereafter unless the individual is:

(i) discharged out of the program and subsequently readmitted, wherein the cycle begins again; or

(ii) receiving psychotropic medication treatment and medication education services only, wherein the need for continued treatment shall be reviewed every 12 months thereafter.

(n) The provider of service shall participate as requested by the local governmental unit in the local planning processes pursuant to article 41 of the Mental Hygiene Law.

(o) The provider of service shall cooperate with the Office and the local governmental unit in monitoring the access to services of individuals or groups determined to be in urgent need of services pursuant to this section.

(p) In programs that are not operated by State government, there shall be an annual audit of the service provider, pursuant to a format prescribed by the Office, and in accordance with Generally Accepted Auditing Principles, of the financial condition and accounts of the provider, or in accordance with requirements established by the Department of Health for programs operated by agencies operated pursuant to article 28 of the Public Health Law. This audit shall be performed by a certified public accountant who is not a member of the governing body or an employee of the program. In addition, the provider is required to submit an annual Consolidated Fiscal Report to the Office of Mental Health, signed by the Chief Executive Officer, and meet all requirements for submission as described in the instructions for this Report. Government-operated programs shall comply with applicable laws concerning financial accounts and auditing requirements. The Office shall utilize the applicable schedules to the annual Consolidated Fiscal Report to the Office of Mental Health to determine provider compliance with the indigent care requirements contained in section 599.15 of this Part.

(q) A provider of services required to comply with the indigent care requirements contained in section 599.15 of this Part shall ensure that no individual who is otherwise appropriate for admission is denied access to services solely because the individual does not have creditable coverage or the means to pay the provider's private pay rates or sliding fee scale.

(r) Programs operated by hospitals, including psychiatric centers operated by the State, or hospitals licensed pursuant to article 31 of the mental hygiene law or article 28 of the public health law, which are Medicare certified and provide outpatient services reimbursed by Medicare, shall ensure services are provided consistent with applicable Medicare certification and coverage standards and policies, in addition to any other requirement contained in this Part.

History

Amended New York State Register October 21, 2020/Volume XLII, Issue 42, eff. 10/21/2020

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.7 Rights of recipients

(a) Recipients admitted to a Mental Health Outpatient Treatment and Rehabilitative Service program certified pursuant to this Part are entitled to the rights defined in this subdivision. A provider of service shall be responsible for ensuring the protection of these rights.

(1) Recipients have the right to an individualized plan of treatment services and to participate to the fullest extent consistent with the recipients' capacity in the establishment and revision of that plan.

(2) Recipients have the right to a full explanation of the services provided in accordance with their treatment plan.

(3) Participation in treatment in a Mental Health Outpatient Treatment and Rehabilitative Service program is voluntary and recipients are presumed to have the capacity to consent to such treatment. The right to participate voluntarily in and to consent to treatment shall be limited only pursuant to a court order or in accordance with applicable provisions of law.

(4) While a recipient's full participation in treatment is a central goal, a n individual/guardian's objection to their treatment plan, or disagreement with any portion thereof, shall not, in and of itself, result in their termination from the program unless such objection renders continued participation in the program clinically inappropriate or would endanger the safety of the individual or others.

(5) The confidentiality of recipients' clinical records shall be maintained in accordance with applicable State and Federal laws and regulations, which may include, but are not limited to section 33.13 of the Mental Hygiene Law, article 27-F of the Public Health Law, the Health Insurance Portability and Accountability Act (HIPAA), and 42 CFR part 2.

(6) Recipients shall be assured access to their clinical records, including their mental illness diagnosis, consistent with section 33.16 of the Mental Hygiene Law and applicable Federal requirements.

(8) Recipients have the right to receive services in such a manner as to ensure nondiscrimination.

(9) Recipients have the right to be treated in a way that acknowledges and respects their cultural environment including the provision of language assistance services at no cost to the Individual and/or collaterals and shall make all necessary documents available in the recipient's preferred language.

(10) Recipients have the right to a reasonable degree of privacy consistent with the effective delivery of services.

(11) Recipients have the right to freedom from abuse and mistreatment by employees.

(12) Recipients have the right to be informed of the provider's grievance policies and procedures, and to initiate any question, complaint or objection accordingly.

(b) A provider of service shall provide a notice of recipients' rights as described in subdivision (a) of this section to each individual upon admission to a Mental Health Outpatient Treatment and Rehabilitative Service program. Such notice shall be provided in writing and posted in a conspicuous location easily accessible to the public. The notice shall include the address and telephone number of the Justice Center, the nearest regional office of the Protection and Advocacy for Mentally Ill Individuals Program, the nearest chapter of the Alliance on Mental Illness of New York State and the Office of Mental Health.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.8 Mental Health Outpatient Treatment and Rehabilitative Services

(a) Eligibility for admission to a Mental Health Outpatient Treatment and Rehabilitative Service program shall be based on a designated mental illness diagnosis.

(b) Mental Health Outpatient Treatment and Rehabilitative Service programs shall offer each of the following services, to be provided consistent with recipients' conditions and needs:

(1) Assessment;

(2) Psychiatric assessment;

(3) Crisis intervention services;

(4) Treatment Planning;

(5) Psychotropic medication treatment;

(6) Psychotherapy;

(7) Complex Care Management.

(c) Optional Services. Mental Health Outpatient Treatment and Rehabilitative Service programs may offer, at its option, any of the following services:

(1) Peer/Family Support Services;

(2) Health monitoring;

(i) Health Screening

(ii) Health Physical

(3) Psychiatric consultation; and

(4) Screening, Brief Intervention and Referral to Treatment (SBIRT).

(d) Optional Services requiring prior approval. Mental Health Outpatient Treatment and Rehabilitative Service Programs may offer, at its option, with prior approval by OMH: Testing Services, including Developmental Testing, Neurobehavioral Status Examination, and Psychological Testing.

(e) Mental Health Outpatient Treatment and Rehabilitative Services Programs may obtain prior approval from the Office to provide Intensive Outpatient Program. Intensive Outpatient Program means providing additional and intensive outpatient services to individuals who may benefit from more intensive, timelimited treatment.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.9 Staffing

(a) A provider of service shall continuously have an adequate number and appropriate mix of staff to carry out the objectives of the Mental Health Outpatient Treatment and Rehabilitative Service program and to assure the outcomes of the program. The provider shall have a staffing plan that documents the staff qualifications, including training, clinical experience with adults diagnosed with mental illness or children diagnosed with emotional disturbance, and supervisory experience in a clinical setting, the appropriateness of the mix of staff, the assignment of staff to the primary program site and any approved satellite locations, and the supervisory relationships among the staff. The plan shall also detail any proposed use of students, non-licensed staff, or paraprofessional staff and their supervision and oversight. Such plan shall be subject to review and approval by the Office at the time of issuance or renewal of the program's operating certificate, and shall demonstrate sufficient coverage by qualified psychiatrists and medical staff to meet the needs of program enrollees.

(b) The following individuals may provide services:

(1) Professional Staff within their defined scopes of practice or as otherwise permitted by law;

(2) Licensed Practitioners of the Healing Arts within their defined scopes of practice or as otherwise permitted by law;

(3) Paraprofessional Staff supervised by Professional Staff;

(4) Certified Peer Specialists, Credentialed Family Peer Advocates, and Credentialed Youth Peer Advocates;

(5) Students, provided they are participating in a program approved by the New York State Education Department that leads to a degree or license in one of the Mental Health Outpatient Treatment and Rehabilitative Service program 's professional disciplines, reflective of Professional Staff as defined in this Part, and in accordance with the following:

(i) Students must be supervised and evaluated according to a signed agreement between the Mental Health Outpatient Treatment and Rehabilitative Service program provider and a New York State Education Department-approved educational program, and pursuant to the Mental Health Outpatient Treatment and Rehabilitative Service program provider's policies and procedures for student placements and clinical supervision;

(ii) Students must be part of a staffing plan that is approved by the Office;

(c) All Mental Health Outpatient Treatment and Rehabilitative Service program staff of providers licensed solely under Article 31 of the Mental Hygiene Law who are directly involved in providing services shall submit to criminal background checks. All Mental Health Outpatient Treatment and Rehabilitative Service program staff with the potential for or may be permitted, regular and substantial unsupervised or unrestricted contact with children in performance of their duties shall submit to clearance by the New York Statewide Central Register of Child Abuse and Maltreatment. Mental Health Outpatient Treatment and Rehabilitative Service program staff members who have not been screened by the New York Statewide Central Register of Child Abuse and Maltreatment shall not perform duties requiring contact with children unless there is another screened staff member present.

(d) The Office may approve other qualified staff, as appropriate.

(e) The Office may approve the transition of programs to heightened licensure requirements set by the New York State Education Department or other licensing or credentialing authority to the extent permitted by law. (f) Programs operated by hospitals, including psychiatric centers operated by the State, or hospitals licensed pursuant to article 31 of the mental hygiene law or article 28 of the public health law, which are Medicare certified and provide outpatient services reimbursed by Medicare, shall ensure services are provided under the supervision and direction of a physician, consistent with applicable Medicare certification and coverage standards and policies.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.10 Treatment planning

(a) Treatment planning includes, where appropriate, a means for determining when the individual's goals have been met to the extent possible in the context of the program, and planning for the appropriate discharge of the individual from the clinic. The treatment planning process is a means of reviewing and adjusting the services necessary to assist the individual in reaching the point where he or she can pursue life goals such as employment or education, without impediment resulting from their illness.

(b) For recipients who are Medicaid Fee-for-service beneficiaries, the initial Treatment P lan shall be completed not later than 30 calendar days after admission. For any other payer or plan, initial treatment plans shall be completed pursuant to such other payer or plan's requirement as shall apply.

(1) the individual' s designated mental illness diagnosis or a notation that the diagnosis may be found in a specific assessment document in the individual 's case record;

(2) the individual' s needs and strengths;

(3) the individual 's treatment goals and objectives;

(4) the name and title of the individual' s primary clinician in the program, and identification of the types of personnel who will be furnishing services;

(5) the recommended and agreed upon Mental Health Outpatient Treatment and Rehabilitative Service(s) and the projected frequency and duration for each service;

(6) where applicable, documentation of the need for the provision of off-site services, and special linguistic arrangements; and

(7) the signature of the treating clinician, as appropriate. For recipients who are Medicaid Fee-for-service beneficiaries, treatment plans shall be signed by a psychiatrist, Nurse Practitioner of Psychiatry, or other physician. For all other payers or plans, treatment plans containing prescribed medications shall be signed by a psychiatrist, other physician or nurse practitioner in psychiatry and treatment plans which do not contain prescribed medications shall be signed by a psychiatrist, other physician, licensed psychologist, nurse practitioner in psychiatry, licensed clinical social worker, or other licensed practitioner to the extent permitted by such other payer or plan's requirements.

(d) Treatment plans shall be reviewed no less frequently than annually based on the date of admission, the most recent treatment plan review, or additionally as determined by the individual 's primary clinician. Treatment plan reviews shall include the input of relevant staff, as well as the individual, family members and collaterals, as appropriate. The Treatment Plan Review shall be documented and include the following:

(1) assessment of the progress of the individual in regard to the mutually agreed upon goals in the treatment plan; and

(2) adjustment of goals and treatment objectives, time periods for achievement, intervention strategies or initiation of discharge planning, as appropriate.

(e) Treatment plans shall be updated when new services are added, service intensity is increased or as necessary as determined by the recipient's treating clinician. When the treatment plan is updated the treating clinician as appropriate, pursuant to paragraph (7) of subdivision (c) of this section, shall sign the updated treatment plan. All other changes to information in the treatment plan shall only require the treating clinician's signature and may be recorded in progress notes.

(f) Individual participation in the treatment planning process, including initial treatment planning and treatment plan reviews, shall be documented by notation in the record of the participation of the individual or of the person who has legal authority to consent to health care on behalf of the individual, or, in the case of a child, of a parent, guardian, or other person who has legal authority to consent to health care on behalf of the child, as well as the child, where appropriate. The individual's family and/or collaterals should participate as appropriate in the development of the treatment plan. Family and/or c ollaterals participating in the development of the treatment plan shall be specifically identified in the plan.

(g) Progress notes shall be recorded by the clinical staff member(s) who provided services to the individual upon each occasion of service. These notes must summarize the service(s) provided, update the individual's progress toward their goal (s), and include any recommended changes to the elements of the individual's treatment plan. The progress notes shall also document the date and duration of each service provided, the location where the service was provided, whether collaterals were seen, and the name and title of the staff member providing each service.

History

Amended New York State Register August 19, 2020/Volume XLII, Issue 33, eff. 8/19/2020

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.11 Case records

(a) There shall be a complete case record maintained for each person admitted to a Mental Health Outpatient Treatment and Rehabilitative Service program. Such case records shall be maintained in accordance with recognized and accepted principles of recordkeeping as follows:

(1) hard copy case record entries shall be made in non-erasable ink or typed, and shall be legible;

(2) electronic records which use accepted mechanisms for clinician signatures and are maintained in a secure manner, may be utilized. Such records may be kept in lieu of a hard copy case record; and

(3) all entries in case records shall be dated and signed by appropriate staff.

(b) The case record shall be available to all staff of the Mental Health Outpatient Treatment and Rehabilitative Service program who are participating in the treatment of the individual and shall include the following information:

(1) individual demographics, identifying information, and history;

(2) preadmission screening notes, as appropriate;

(3) admission note;

(4) diagnosis;

(5) assessment of the individual's needs;

(6) reports of all mental and physical diagnostic exams, mental health assessments, screenings, tests, and consultations, including risk assessments, health monitoring, and evaluative reports concerning co-occurring developmental, medical, substance use or educational issues performed by the program;

(7) Treatment Plans;

(8) dated progress notes that relate to goals and objectives of treatment;

(9) dated progress notes that relate to significant events and/or incidents;

(10) treatment plan reviews;

(11) dated and signed records of all medications prescribed by the Mental Health Outpatient Treatment and Rehabilitative Service program; and other prescription medications being used by the individual if known;

(12) discharge plan; and referrals to other programs and services, if applicable;

(13) consent forms, if applicable;

(14) record of contacts with collaterals if applicable; and

(15) discharge summary.

(c) The discharge summary shall be transmitted to the receiving program, where applicable, prior to the arrival of the individual, or within two weeks, whichever comes first. When circumstances interfere with a timely transmittal of the discharge summary, notation shall be made in the record of the reason for delay.

(d) When a n individual is transferred between programs offered by the same provider, a consolidated record format that follows the individual may be used.

(e) Records must be retained for a minimum period of six years from the last date of service and in accordance with Office record retention policy.

(f) Information in Mental Health Outpatient Treatment and Rehabilitative Service program case records that is subject to the confidentiality protections of Mental Hygiene Law section 33.13 may be shared between facilities, agencies and programs responsible for the provision of services pursuant to an approved local or unified services plan (including programs that receive funding from the Office disbursed via a State Aid letter); the Office and any of the psychiatric centers and programs that it operates; and facilities, agencies, and programs that are not licensed by the Office and are not participants in an approved local or unified services plan, but are responsible for the provision of services to any patient pursuant to a written agreement with the Office as a party, provided, however, if a case record contains HIV or AIDS information that is protected by Public Health Law article 27-F, or information provided by a federally-funded alcoholism/substance abuse provider that is protected under 42 CFR part 2, such information shall only be redisclosed as permitted by such law or regulation.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.12 Premises

(a) A provider of service shall maintain premises that are adequate and appropriate for the safe and effective operation of a Mental Health Outpatient Treatment and Rehabilitative Service program in accordance with the following:

(1) Programs shall provide for sufficient private and group rooms consistent with the number of people served and activities offered. There shall also be a sufficient number of restroom facilities to accommodate the population utilizing the Mental Health Outpatient Treatment and Rehabilitative Service program service.

(2) Programs shall provide for controlled access to and maintenance of medications and supplies in accordance with all applicable Federal and State laws and regulations.

(3) Programs shall provide for controlled access to and maintenance of records.

(4) Programs shall ensure accessibility for persons with disabilities to program and bathroom facilities. Programs shall adjust service environments, as needed, for recipients who are blind, deaf or otherwise disabled.

(5) Programs shall have sufficient and appropriate furnishings maintained in good condition and appropriate program related equipment and material for the population served.

(6) Program space shall be sufficient to provide safety, and to allow for a reasonable degree of privacy consistent with the effective delivery of services. Program space may be shared with other programs, pursuant to a plan approved by the Office. Non-program space may be shared with other programs without such approval.

(7) There should be sufficient separation and supervision of various treatment groups to ensure the safety of the population receiving Mental Health Outpatient Treatment and Rehabilitative Service program services.

(c) Off-site services shall be provided in settings that are conducive to meeting treatment goals and objectives, be accommodating to the conditions and needs of those being served, be safe and accessible for all, and assure privacy for the delivery of services.

History

Amended New York State Register November 23, 2022/Volume XLIV, Issue 47, eff. 11/23/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.13 Medical assistance Mental Health Outpatient Treatment and Rehabilitative Service program reimbursement system

(a) Reimbursement for Mental Health Outpatient Treatment and Rehabilitative Service programs procedures will be fee based.

(b) A weight for each Mental Health Outpatient Treatment and Rehabilitative Service program procedure shall be established by the Department of Health in conjunction with the Office which reflects the relative anticipated resource utilization for such procedure. For some procedures, fees shall be enhanced pursuant to section 599.14 of this Part through the use of billing modifiers for such things as procedures delivered after hours, services provided in languages other than English, and services of a minimum duration of 15 continuous minutes delivered by a physician or nurse practitioner in psychiatry.

(c) Providers will be categorized into peer groups pursuant to this section. The Office will establish a base fee for reimbursement for each peer group. Such fee shall be reduced by 25 percent during the period in which any such provider retains an operating certificate with a duration of less than six months as a result of having been determined to be deficient in meeting applicable standards and requirements, pursuant to this Part.

(d) Peer group specific base fees may be adjusted as applicable by the Office. Provider specific fee adjustments may be made to reflect pay for performance enhancements, penalties resulting from the Office inspection and certification process, or for other reasons described in the regulations of the Office.

(e) Payments for procedures will be determined by multiplying the assigned weight for the appropriate procedure code set forth at 10 NYCRR Part 86 by the base fee, and adjusting such fee for modifiers and discounts, as appropriate. When a modifier or discount is expressed as a percentage, it will adjust the payment by its percentage of the procedure weight. When more than one procedure applies to a visit, the highest value procedure shall be paid at its full fee value.

(1) Payments for additional procedures related to the visit will be discounted by 10 percent, except for Mental Health Outpatient Treatment and Rehabilitative Service Programs approved by the Office to provide Intensive Outpatient Program (IOP) where there will be no discounted services for additional procedures.

(2) Payments will be reduced by 25 percent for any visit in excess of 30, excluding crisis intervention services, off-site visits, complex care management, peer/family support services, any services that are provided as part of IOP, and any services that are counted as health services, provided during a state fiscal year to any individual who is 21 years of age or older on the first day of such fiscal year, and 50 percent for any visit in excess of 50, excluding crisis intervention services, off-site visits, complex care management, peer/family support services, any services that are provided as part of IOP, and any services counted as health services, provided during such fiscal year to any individual, for fiscal years commencing on or after April 1, 2011, except that effective January 1, 2015, this reduction in payment will not apply to court-mandated services.

(f) The Office will annually review procedure weights, modifier values, peer groupings and the base fees for each of the peer groupings, and will update them as needed. Any changes will be published in the State Register and posted on the Office's website.

(g) The Office will establish and make public a list of weights associated with all CPT and HCPCS procedure codes which can be used to bill specific mental health Mental Health Outpatient Treatment and Rehabilitative Service program procedures through Medical Assistance. The Office will update this list as needed.

(h) Providers licensed solely under article 31 of the Mental Hygiene Law shall be classified by the following peer groups.

(1) Upstate. All non-Local Governmental Unit operated Mental Health Outpatient Treatment and Rehabilitative Service programs operating solely under an Office of Mental Health operating certificate and located in the following counties shall be considered to be included in the upstate peer group: Albany, Allegany, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Otsego, Rensselaer, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, St. Lawrence, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming, and Yates counties.

(2) Downstate. All non-Local Governmental Unit operated Mental Health Outpatient Treatment and Rehabilitative Service programs operating solely under an Office of Mental Health operating certificate and located in the following counties shall be considered to be included in the downstate peer group: Bronx, Kings, New York, Queens, Richmond, Nassau, Suffolk, Dutchess, Orange, Putnam, Rockland and Westchester counties.

(3) Local Governmental Unit-Operated. All Mental Health Outpatient Treatment and Rehabilitative Service programs operated by a local governmental unit which are operating solely under an operating certificate from the Office.

(4) State-operated. All hospital-based Mental Health Outpatient Treatment and Rehabilitative Service programs operated by the Office.

(i) Hospital-based providers licensed under article 28 of the Public Health Law and article 31 of the Mental Hygiene Law shall be classified by the following peer groups. The base rates will be calculated pursuant to 10 NYCRR Part 86.

(1) Upstate hospital - All hospital-based Mental Health Outpatient Treatment and Rehabilitative Service programs in Albany, Allegheny, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Otsego, Rensselaer, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, St. Lawrence, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren and Washington, Wayne, Wyoming, and Yates counties.

(2) Downstate hospital- All hospital-based Mental Health Outpatient Treatment and Rehabilitative Service programs in Bronx, Kings, New York, Queens, Richmond, Nassau, Suffolk, Dutchess, Orange, Putnam, Rockland and Westchester counties.

(3) The fee paid to new Mental Health Outpatient Treatment and Rehabilitative Service programs, or Mental Health Outpatient Treatment and Rehabilitative Service programs commencing service in a new county, shall be calculated pursuant 10 NYCRR 86-8.6.

(j) Diagnostic and treatment center (D&TC) providers licensed under Article 28 of the Public Health Law and Article 31 of the Mental Hygiene Law shall be classified by the following peer groups. The base rates will be calculated pursuant to this Part.

(1) Upstate D&TC - All diagnostic and treatment centers in Albany, Allegheny, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Otsego, Rensselaer, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, St. Lawrence, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren and Washington, Wayne, Wyoming, and Yates counties.

(2) Downstate D&TC - All diagnostic and treatment centers in Bronx, Kings, New York, Queens, Richmond, Nassau, Suffolk, Dutchess, Orange, Putnam, Rockland and Westchester counties.

(k) D&TCs and hospitals - Where a corporation operates a hospital and a D&TC, the Office will determine the primary relationship between the mental health program and the hospital or D&TC and assign the Mental Health Outpatient Treatment and Rehabilitative Service program to the appropriate peer group.

(l) Supplemental Payments. Provider peer group base fees paid pursuant to this section shall be supplemented as appropriate for individual providers participating in the Office of Mental Health quality improvement initiative, or other performance initiatives developed by the Office.

(1) In order to be enrolled in such quality improvement initiative or other Office of Mental Health performance-based payment system, the program shall execute an agreement with the Office under which the provider agrees to participate in such initiative, and undertake such measures as shall be developed by the Office.

(2) Any program eligible to receive supplemental medical assistance reimbursement for participation in a quality improvement initiative, which fails at any time to meet the requirements set forth in the agreement, shall have its quality improvement supplement to its peer group base fee suspended until such time as the program meets such requirements, as determined by the Office.

History

Amended, New York State Register April 1, 2015/Volume XXXVII, Issue 13, eff. 4/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.14 Medical assistance billing standards

(a) Medicaid claims for individuals who have been admitted to a Mental Health Outpatient Treatment and Rehabilitative Service program shall include, at a minimum, the Medicaid identification number of the individual, the designated mental illness diagnosis, the procedure code or codes corresponding to the procedure or procedures provided, the location of the service, specifically the licensed location where the service was provided or the clinician's regular assigned licensed location from which the clinician departed for an off-site procedure, and the National Provider Identification or equivalent Department of Health-approved alternative as appropriate of the attending clinician. The provider must also comply with the requirements associated with any procedure code being billed.

(b) Medicaid claims may be reimbursed for up to three pre-admission procedures per adult individual, excluding Peer/Family Support Services which has no pre-admission reimbursement limit, no more than one of which may be a collateral procedure. For children, claims may be reimbursed for up to three pre-admission visits per child/family, excluding visits solely for Peer Support Services. For pre-admission visits at least the code for unspecified Illness must be entered on the claim.

(c) Medicaid claims may be submitted for no more than three services, comprising of two psychiatric services and one health service, per day for any individual, not including crisis intervention, complex care management, peer support services, or any services that are provided as part of IOP. For the purposes of this subdivision, psychotropic medication treatment, injectable psychotropic medication administration, injectable psychotropic medication administration with monitoring and education, and complex care management services may be counted as either health services or psychiatric services. No more than one health physical may be claimed in one year.

(d) Billing services.

(1) Assessment services consist of two types of assessment--Initial Assessment and Psychiatric Assessment. No more than three initial assessment procedures may be reimbursed by Medicaid. Additional initial assessment procedures are eligible for Medicaid reimbursement when more than 365 days have transpired since the most recent Medicaid reimbursed visit to the Mental Health Outpatient Treatment and Rehabilitative Service program.

(i) initial assessment Services shall include performance or consideration, as applicable, of the Health Screening.

(ii) The Mental Health Outpatient Treatment and Rehabilitative Service program must document a minimum of 45 minutes face-to-face contact with the individual or family or other collaterals. For school-based services, the duration of such services may be that of the school period, provided the school period is of a duration of at least 40 minutes.

(iii) Mental Health Outpatient Treatment and Rehabilitative Service programs may bill the physician modifier when psychiatrists, nurse practitioners in psychiatry, or physicians approved pursuant to Section 599.9 of this Part spend at least 15 minutes serving the individual during the time the initial assessment is being conducted by another licensed practitioner.

(iv) A Psychiatric Assessment may be provided to either an individual being assessed for admission to the Mental Health Outpatient Treatment and Rehabilitative Service program, or an individual who is currently admitted. Psychiatric assessments may be performed for admitted recipients where medically necessary without limitations. Psychiatric Assessments may include such elements as a diagnostic interview and treatment plan development.

(a) A Psychiatric Assessment may be provided by a physician, psychiatrist, nurse practitioner in psychiatry, or physician assistant with specialized training approved by the Office to an individual who has been admitted to the Mental Health Outpatient Treatment and Rehabilitative Service program, or one for whom the appropriateness of admission is being assessed.

(b) A Psychiatric Assessment of at least 30 minutes of documented face-to-face interaction between the individual, or family or other collaterals, and the physician, psychiatrist, or nurse practitioner in psychiatry, shall be billed as a Brief Psychiatric Assessment.

(c) A Psychiatric Assessment of at least 45 minutes of documented face-to-face interaction between the individual, or family or other collaterals, and the physician, psychiatrist or nurse practitioner in psychiatry, shall be billed as an Extended Psychiatric Assessment.

(d) Programs shall comply with the most recent applicable AMA coding guidelines regarding the appropriate use of evaluation and management codes for Psychiatric Assessment services, including minimum duration standards for the provision of psychotherapy services provided by physicians and nurse practitioners. Where clinically appropriate and consistent with applicable AMA coding guidelines for service duration ranges for evaluation and management codes, programs may bill for Brief or Extended Psychiatric Assessments for shorter service durations than those specified in this subparagraph.

(2) Psychiatric Consultation.

(i) Psychiatric Consultation may be provided by a Physician, Psychiatrist, Nurse practitioner, or Psychiatric nurse practitioner to a referring physician for the purposes of assisting in the diagnosis, integration of treatment, or assistance in ensuring continuity of care, for a n individual receiving services from a referring physician.

(ii) Psychiatric Consultation services must be face-to-face with the individual, or using telehealth, where approved by the Office and shall be billed by the Program in the same manner as Psychiatric Assessments pursuant to paragraph (1) of this subdivision.

(3) Crisis Intervention.

(i) The Mental Health Outpatient Treatment and Rehabilitative Service program may make contractual arrangements for after-hours crisis coverage by clinicians, but contracts for this service must be approved by the local governmental unit in which the Mental Health Outpatient Treatment and Rehabilitative Service program is located, or by the Office for county-operated Mental Health Outpatient Treatment and Rehabilitative Service programs.

(ii) Crisis Intervention Services consist of three billable levels of service.

(a) Crisis Intervention--Brief. Brief Crisis Intervention Services shall be done in person or via telehealth. For services of a duration of at least 15 minutes, one unit of service shall be billed. For each additional service increment of at least 15 minutes, an additional unit of service may be billed, up to a maximum of six units per day.

(b) Crisis I ntervention--Complex. Complex Crisis Intervention requires a minimum of one hour of face-to-face contact by two or more clinicians. Both clinicians must be present for the majority of the duration of the total contact. Certified Peer Specialists, Credentialed Family Peer Advocates, and Credentialed Youth Peer Advocates, or paraprofessional staff may substitute for one clinician. Mental Health Outpatient Treatment and Rehabilitative Service program may be reimbursed for crisis intervention-complex services provided to individuals who have not engaged in services for a period of up to two years.

(c) Crisis I ntervention--Per Diem. Per Diem Crisis Intervention requires three hours or more of face-to-face contact by two or more clinicians. Both clinicians must be present for the majority of the duration of the total contact. Certified Peer Specialists, Credentialed Family Peer Advocates, and Credentialed Youth Peer Advocates, or paraprofessional staff may substitute for one clinician. Mental Health Outpatient Treatment and Rehabilitative Service programs may be reimbursed for crisis intervention-per diem services provided to individuals who have not engaged in services for a period of up to two years.

(4) Injectable Psychotropic Medication Administration services are reimbursed for in person contact between a clinician and the individual. Injectable Psychotropic Medication Administration Services consist of two billable levels of service.

(i) Injectable Psychotropic Medication Administration service has no minimum time limit. This service includes medication injection.

(ii) Injectable Psychotropic Medication Administration with Monitoring and Education requires a minimum of 15 minutes. This service includes medication injection, monitoring and individual education, as necessary. If the Injectable Psychotropic Medication Administration with Monitoring and Education Service is provided to an individual by a Psychiatrist, Physician, Nurse practitioner, or Psychiatric Nurse Practitioner, it shall not be claimed in addition to an evaluation and management service (including psychiatric assessment and psychotropic medication treatment) received by that individual on the same day. In this case, the Mental Health Outpatient Treatment and Rehabilitative Service program may claim reimbursement for an Injectable Psychotropic Medication Administration procedure instead.

(5) Psychotropic Medication Treatment services are reimbursed for face-to-face contact of at least 15 minutes in duration between a Psychiatrist, Physician, Nurse practitioner, or Psychiatric Nurse Practitioner, and the individual.

(6) Psychotherapy services. Psychotherapy services consist of the following levels of billable service.

(i) Psychotherapy services individual shall be reimbursed as follows:

(a) A psychotherapy service provided face to face with the individual with a documented duration of 30 minutes shall be billed as a brief psychotherapy service.

(b) A psychotherapy service provided face to face with the individual with a documented duration of 45 minutes shall be billed as an extended psychotherapy service.

(c) Brief and Extended Psychotherapy services may be billed where more than half of the minimum service duration is spent providing services to the individual and the remainder of the minimum service duration is spent providing service to a collateral.

(d) Programs shall comply with applicable AMA coding guidelines regarding the appropriate use of evaluation and management codes for Psychotherapy services. Where clinically appropriate and consistent with applicable AMA coding guidelines for service duration ranges for evaluation and management psychotherapy codes, programs may bill for Brief or Extended Psychotherapy for shorter service durations than those specified in this subparagraph.

(ii) Psychotherapy Family/Collateral with the individual requires documented cumulative, continuous face-to-face service with the individual and the collateral of a minimum duration of 50 minutes, during which time the individual shall be present for at least the majority of the time.

(iii) Psychotherapy Family/Collateral Without the individual requires documented face-to-face service with the collateral of a minimum duration of 30 minutes. For this service, the individual may also be present for some or all of the time. Where clinically appropriate and consistent with applicable AMA coding guidelines for service duration ranges for evaluation and management psychotherapy codes, programs may bill for Psychotherapy-Family/Collateral Without the Individual for shorter service durations than those specified in this subparagraph.

(iv) Psychotherapy Multi- Individual Group requires documented face-to-face service with a minimum of two recipients and a maximum of 12 recipients for services of a minimum duration of 60 minutes. For services of a duration of at least 40 minutes and less than 60 minutes, reimbursement will be reduced by 30 percent.

(v) Psychotherapy Multi-Family/Collateral Group requires documented face-to-face service with a minimum of two multifamily/ collateral units and a maximum of eight multifamily/ collateral units in the group, with a maximum total number in any group not to exceed 16 individuals, and a minimum duration of 60 minutes of service. For services of a duration of at least 40 minutes and less than 60 minutes, reimbursement will be reduced by 30 percent.

(7) Testing Services, including Developmental Testing, Neurobehavioral Status Examination, and Psychological Testing. Medical Assistance may reimburse for this service solely for individuals admitted to the Mental Health Outpatient Treatment and Rehabilitative Service program. Developmental Testing services must be face-to-face with the individual.

(8) Complex care management must be provided no later than within 14 calendar days following a face-to-face psychotherapy, psychotropic medication treatment, or crisis intervention mental health outpatient program service. A maximum of four units of at least five consecutive minutes of complex care management may be billed following each face-to-face psychotherapy, psychotropic medication treatment, or crisis intervention service. Each full five-minute unit may be provided on separate days within the 14-calendar day limit, with a maximum of four full five-minute units associated with each eligible Mental Health Outpatient Treatment and Rehabilitative Service program visit. The time spent documenting the provision of complex care management or in other documentation activities shall not be included in the calculation of time for the purposes of billing of complex care management.

(9) Peer/Family Support Services may be provided to individuals, family or other collaterals, or groups of individuals not to exceed 12. For services of a duration of at least 15 minutes, one unit of service shall be billed. For each additional service increment of at least 15 minutes, an additional unit of service may be billed, up to twelve units per day, or 3 hours maximum. Multiple units of Peer/Family Support Services may be provided consecutively or at different times of the day.

(e) Modifiers. Billing modifiers, including modifiers paid as supplementary rates to visits, are available pursuant to this section as indicated in the modifier chart included in this subdivision.

Modifier Chart for Services Provided On-Site

| Office of Mental Health Service Name | After Hours | Language other than English | Physician/ NPP | | --- | --- | --- | --- | | Complex Care Management | x | x | | | Crisis Intervention Service -brief | x | x | | | Crisis Intervention Service - Complex | x | x | | | Crisis Intervention Service - Per Diem | x | x | | | Peer/Family Support Services | x | x | | | Developmental, Neurobehavioral Status Exam, and Psychological Testing | x | x | | | Injectable Psychotropic Medication Administration with Monitoring and Education | x | x | | | Psychotropic Medication Treatment | x | | | | Initial Mental Health Assessment, Diagnostic Interview, and Treatment Plan Development | x | x | x | | Psychiatric Assessment - brief | x | x | | | Psychiatric Assessment - extended | x | x | | | Individual Psychotherapy - brief | x | x | x | | Individual Psychotherapy - extended | x | x | x | | Group and Multifamily/Collateral Group Psychotherapy | x | x | x | | Family Therapy/Collateral w/o patient | x | x | x | | Family Therapy/Collateral with patient | x | x | x |

(f) A Mental Health Outpatient Treatment and Rehabilitative Service program may not be reimbursed for services provided to an individual currently enrolled in another program licensed by the Office for which Medicaid reimbursement is being made except as provided in this subdivision.

(1) Reimbursement shall be made for up to three pre-admission visits when a n individual is in transition from another outpatient program, except another Mental Health Outpatient Treatment and Rehabilitative Service program. After completion of the three preadmission visits, a Mental Health Outpatient Treatment and Rehabilitative Service program provider may not bill Medical Assistance for a service unless it is medically necessary, performed pursuant to a treatment plan approved pursuant to this Part, and, except as specified in this subdivision, the individual has been discharged from the other outpatient program.

(2) Reimbursement shall be made for a n individual currently admitted to a continuing day treatment program in accordance with Part 587 of this Title when such individual shall also be admitted to a Mental Health Outpatient Treatment and Rehabilitative Service program solely for the purpose of clozapine medication therapy. Reimbursement shall be made for no more than five clozapine medication treatment visits per month per individual.

(3) Reimbursement shall be made for services provided, including preadmission visits, without regard to an individual's enrollment in more than one, different Mental Health Outpatient Treatment and Rehabilitative Service programs, except reimbursement shall not be made to more than one program for the same service on the same date of service.

(4) Reimbursement shall not be made for services rendered by a Mental Health Outpatient Treatment and Rehabilitative Service program to residents of a residential health care facility. Reimbursement shall be made to the Mental Health Outpatient Treatment and Rehabilitative Service program by the residential health care facility.

(g) The Office will only consider requests for revisions of fees calculated under the provisions of this Part due to errors made by the Office in its calculation.

(1) A request for revision of a fee calculated in accordance with this section shall be sent to the Commissioner by registered or certified mail and shall contain a detailed statement of the basis for the requested revision together with any documentation that the provider of service wishes to submit.

(2) A request for revision must be submitted within 120 days of receipt by the provider of service of the rate computation.

(3) The provider of service shall be notified in writing of the Commissioner's determination, including a statement of the reasons therefor.

(h) Miscellaneous billing rules.

(1) Services provided by Mental Health Outpatient Treatment and Rehabilitative Service programs operated by agencies licensed under article 28 of the Public Health Law, which are also licensed pursuant to article 31 of the Mental Hygiene Law, shall not be considered to be specialized services pursuant to section 2807 of the Public Health Law.

History

Amended, New York State Register December 17, 2014/Volume XXXVI, Issue 50, eff. 12/17/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 599.15 Indigent care

(a) The indigent care program for Mental Health Outpatient Treatment and Rehabilitative Service programs has been established by New York State to offset a portion of the losses from uncompensated care experienced by diagnostic and treatment centers licensed by the New York State Department of Health and mental health Mental Health Outpatient Treatment and Rehabilitative Service programs licensed by the Office that are not also licensed by the New York State Department of Health and/or not directly operated by the Office.

(b) Eligible mental health Mental Health Outpatient Treatment and Rehabilitative Service programs for purposes of this section shall mean non-profit or county-sponsored Mental Health Outpatient Treatment and Rehabilitative Service programs that can demonstrate losses from a disproportionate share of uncompensated care during a base period two years prior to the grant period; with the exception of the transition period to be established by the Office in guidance. Non-profit mental health Mental Health Outpatient Treatment and Rehabilitative Service programs meeting or exceeding profit margins and total net assets established pursuant to subsection (k) of this section shall not be eligible for allocations pursuant to this section.

(c) Uncompensated care need, for purposes of this section, means the following, subject to limitations to be provided in guidance by the Office:

(1) Self pay, including partial pay or no pay visits;

(2) Required or optional mental health Mental Health Outpatient Treatment and Rehabilitative Service program procedures provided but NOT covered under a Mental Health Outpatient Treatment and Rehabilitative Service program 's agreement with a third-party payer;

(3) Unreimbursed Mental Health Outpatient Treatment and Rehabilitative Service program visits/procedures appropriately provided to an insured individual by a Mental Health Outpatient Treatment and Rehabilitative Service program staff member not approved for payment by a third party payer in contract with the Mental Health Outpatient Treatment and Rehabilitative Service program; or

(4) Unreimbursed Mental Health Outpatient Treatment and Rehabilitative Service program visits/procedures appropriately provided to an insured individual by a Mental Health Outpatient Treatment and Rehabilitative Service program staff member when the procedure is not reimbursed by a third party payer not in contract with the Mental Health Outpatient Treatment and Rehabilitative Service program.

(d) To be eligible for an allocation of funds pursuant to this section, a mental health program must demonstrate that a minimum of five percent of total Mental Health Outpatient Treatment and Rehabilitative Service program visits reported during the applicable base year period meet the eligibility requirements for the pool. For Mental Health Outpatient Treatment and Rehabilitative Service programs operated by an agency that operates more than one Mental Health Outpatient Treatment and Rehabilitative Service program, to be eligible for an allocation of funds pursuant to this section, the agency must demonstrate that a minimum of five percent of its total Mental Health Outpatient Treatment and Rehabilitative Service program visits meets these requirements. To be eligible, Mental Health Outpatient Treatment and Rehabilitative Service programs must further demonstrate that they maintain a sliding fee scale for uninsured individuals.

(e) Documentation of uncompensated care need must be retained by the Mental Health Outpatient Treatment and Rehabilitative Service program and will be subject to an audit by the New York State Office of the Medicaid Inspector General or other party empowered to conduct such audits.

(f) Rules for the reporting of data on uncompensated care visits to the Office will be established in guidance. Providers participating in the uncompensated care pool that do not submit annual data by dates to be established by the Office will be excluded from the pool for that year.

(g) A mental health program qualifying for a distribution pursuant to this section shall provide assurances satisfactory to the Commissioners of Health and Mental Health that it shall undertake reasonable efforts to maintain financial support from community and public funding sources and reasonable efforts to collect payments for services from third-party insurance payers, governmental payers and self-paying patients.

(h) To be eligible for reimbursement pursuant to this section, claims must be consistent with the Medical Assistance billing standards set forth in this Part. Payments from the indigent care pool shall be made in accordance with the payment rules established by the Office and the Department of Health.

(i) The allocations of funds to a mental health Mental Health Outpatient Treatment and Rehabilitative Service program may be reduced if the Office determines that provider management actions or decisions have caused a significant reduction for the grant period in the delivery of mental health services to uncompensated care residents of the community.

(j) The value of uncompensated care payments will be established in guidance issued by the Office.

(k) Except as provided in subdivisions (1) and (2) of this subsection and excluding mental health Mental Health Outpatient Treatment and Rehabilitative Service programs operated by hospitals licensed pursuant to Article 28 of the Public Health Law, providers operating mental health Mental Health Outpatient Treatment and Rehabilitative Service programs generating net profits from the Mental Health Outpatient Treatment and Rehabilitative Service program in excess of fifteen percent of total revenue and which report total net assets in excess of two times their total annual operating budget, as determined by the provider's submissions pursuant to subsection (o) of section 599.6 of this Part, shall implement a provider-specific indigent care compliance plan approved by the Office to serve individuals without creditable coverage or the ability to pay the provider's private pay or sliding fee scale, Such indigent care compliance plan shall include terms regarding the acceptance of referrals to serve such individuals from the Office, Local Government Unit, or community and remain in effect until the Office determines that net profits and assets no longer exceed the levels established in this subsection. A provider that fails to fully comply with this subsection may have limitations placed on its operating certificate or other sanctions imposed, in accordance with state law and regulations.

(1) Providers required to comply with this subsection may submit documentation to the Office outside of the applicable Consolidated Fiscal Report reporting period to demonstrate that net profits and assets no longer exceed the levels established in this subsection. Redeterminations regarding the applicability of this subsection prior to the submission of the next Consolidated Fiscal Report shall be at the discretion of the Office based on an assessment of the provider's overall financial situation and compliance with Part 513 of this Title.

(2) Non-profit providers that demonstrate losses from the operation of other OMH-licensed programs shall not be required to comply with this subsection if such losses result in net profits of less than fifteen percent of total revenue for all OMH licensed programs operated by the provider.

History

Amended New York State Register October 21, 2020/Volume XLII, Issue 42, eff. 10/21/2020

Part 600 Crisis Stabilization Centers

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.1 Background and Intent

(a) The purpose of Crisis Stabilization Centers for those individuals with a known or suspected mental health condition and/or substance use disorder is to provide observation, evaluation, care, and treatment in a safe and comfortable environment. Such centers shall be open twenty-four (24) hours per day, seven (7) days per week.

(b) The purpose of this Part is to establish standards for a Crisis Stabilization Center which provides a full range of psychiatric emergency and substance use services within a defined geographic area. Crisis Stabilization Centers will provide an array of services as set forth in this Part and any guidance and standards issued by the Office of Mental Health (OMH) and the Office of Addiction Services and Supports (OASAS).

(c) Crisis Stabilization Centers are hereby developed under the authority of the Office of Mental Health (OMH) and the Office of Addiction Services and Supports (OASAS) and all provisions of the Mental Hygiene Law are accordingly integrated. Existing OMH and OASAS Mental Hygiene Law provisions will be relied upon to support Center implementation and operation as referenced herein, unless otherwise specified.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.2 Legal Base

(a) Section 31.36 of the Mental Hygiene Law provides the Commissioner of Mental Health (OMH) with the authority to coordinate with the Office of Addiction Services and Supports (OASAS) to create and operate Crisis Stabilization Centers within New York State and promulgate joint regulations for the operation of such centers.

(b) Section 32.36 of the Mental Hygiene Law provides the Commissioner of OASAS with the authority to coordinate with the OMH to create and operate Crisis Stabilization Centers within New York State and promulgate joint regulations for the operation of such centers.

(c) Section 36.01 of the Mental Hygiene Law grants the Commissioners of OMH and OASAS the authority to jointly license Crisis Stabilization Centers.

(d) Sections 31.05, 31.07, 31.09, 31.13, 31.19 and 31.27 of the Mental Hygiene Law, further authorize the Commissioner of Mental Health or their representative, to examine and inspect such Centers to determine their suitability and proper operation.

(e) Sections 31.16 and 31.17 of the Mental Hygiene Law authorize the Commissioner of Mental Health to suspend, revoke or limit any operating certificate.

(f) Sections 9.41, 9.43, 9.45 and 9.58 of the Mental Hygiene Law provide authority to assess and transport individuals to such Crisis Stabilization Centers.

(g) Section 33.21 of the Mental Hygiene Law authorizes the voluntary treatment of minors.

(h) Section 22.09 of the Mental Hygiene Law authorizes the Commissioner of OASAS to designate appropriate facilities as providers of emergency services for Recipients intoxicated, impaired or incapacitated including the voluntary retention of such Recipient.

(i) Section 32.07 of the Mental Hygiene Law grants the Commissioner of OASAS the authority to regulate the standards of quality and adequacy, physical plant and ongoing compliance for providers of substance use disorder services.

(j) Section 32.09 of the Mental Hygiene Law grants the Commissioner of OASAS the authority to regulate the issuance, temporary approval of and/or revocation of, operating certificates for substance use disorder programs.

(k) Section 22.11 of the Mental Hygiene Law authorizes treatment for minors for substance use disorder without consent from a parent or guardian.

(l) Parts 800-857 of Title 14 of the New York Codes, Rules and Regulations (NYCRR) outline provisions for the operation, administration and responsibilities for substance use disorder treatment programs.

(m) Parts 500-599 of Title 14 of the NYCRR outlining provisions for the operation administration and responsibilities for mental health services.

(n) Section 405.2 of Title 10 of the NYCRR provides additional regulatory requirements for the Governing Body of hospital-based programs.

(o) Sections 424-a and 495 of the Social Services Law relates to the register of category one substantiated cases of abuse and neglect referenced herein for purposes of criminal history reviews.

(p) Parts 160 and 164 of Title 45 of the Code of Federal Rules (CFR) relates to the Health Insurance Portability and Accountability Act (HIPAA) rules regarding confidentiality of health records.

(q) Part 2 of Title 45 of the CFR relates to the confidentiality of substance use treatment records.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.3 Applicability

(a) This Part applies to any provider of services who operates or proposes to operate a Crisis Stabilization Center for individuals who are experiencing a psychiatric or substance use crisis. The goal is to address and stabilize mental health and substance use needs as early as possible. The availability of Crisis Stabilization Centers provides more resources for law enforcement responding to individuals in emotional distress, the courts, and directors of community services, to allow non-violent individuals to be brought to such certified centers for assessment.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.5 Certification

(a) Application and Approval Process.

(1) Applicants must show relevant mental health and/or addictions experience and be licensed, certified or otherwise authorized by OMH, OASAS or the NYS Department of Health (DOH).

(2) Applications shall be submitted in a format prescribed for all applicants and reviewed by the Office.

(3) Applications shall include information needed to demonstrate that the provider is:

(i) licensed, certified or otherwise authorized by OMH, OASAS or the NYS Department of Health (DOH).

(ii) in compliance with all applicable requirements of the Office;

(iii) in good standing at the time of application approval; and

(iv) in compliance with the physical plant requirements set forth in guidance issued by the Office.

(4) Applications may include, but not be limited to, requests for information regarding services to be added and the plan for implementation, staffing, environment, operating expenses and revenues, and utilization of services as they relate to Crisis Stabilization Center services as described in this Part.

(5) The applicant shall supply any additional documentation or information requested by the Office, within a stated timeframe of such request, unless an extension is obtained. The granting of a request for an extension shall be at the discretion of the Office. Failure to provide the additional documentation or information within the time prescribed shall constitute an abandonment or withdrawal of the application without any further action from the Office.

(6) The Office shall approve or disapprove an application in writing.

(7) Applicants may appeal the denial of an application with the Office.

(b) Each Crisis Stabilization Center shall be issued an operating certificate that specifies the type of Crisis Stabilization Center the provider of services is authorized to operate:

(1) Intensive Crisis Stabilization

(i) The purpose of an Intensive Crisis Stabilization Center is to provide urgent treatment to individuals experiencing an acute mental health or substance use crisis. This service provides diversion from higher levels of care by rapid treatment interventions and stabilization of acute symptoms.

(ii) Screening and assessment is performed by the Crisis Stabilization Center to determine the services and referrals needed by the Recipient.

(iii) Intensive Crisis Stabilization Centers must provide all services, as described in Part 600.9.

(2) Supportive Crisis Stabilization

(i) The purpose of a Supportive Crisis Stabilization Center is to provide support and assistance to individuals with mental health or substance use crisis symptoms or who are experiencing challenges in daily life that places them at risk for an escalation of behavioral health symptoms that cannot reasonably be managed in the Recipient's home and/or community environment without onsite supports, and do not pose likelihood of immediate harm to self or others. Supportive Crisis Stabilization Centers provide assistance for individuals who demonstrate mental health and substance use symptoms that can be stabilized through supportive interventions.

(ii) Screening and assessment is performed by the Crisis Stabilization Center to determine the services and referrals needed by the Recipient.

(iii) Supportive Crisis Stabilization Centers must have agreements and/or demonstrate linkages to services described in Part 600.9(c) that are not provided by the Crisis Stabilization Center.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.6 Inspection

(a) The Office shall have initial and ongoing inspection responsibility for all Crisis Stabilization Centers established pursuant to this Part. The purpose of the inspection is to ensure compliance with all applicable laws, rules, regulations, and guidance as well as to determine the renewal term of the operating certificate.

(b) The Office review shall be performed by staff with expertise as necessary to ensure Recipient health and safety. Any significant deficiencies will immediately be referred for enforcement. If at any point during the inspection, findings are identified that suggest imminent risk of serious harm or injury to Recipients, the inspector(s) will immediately contact their supervisor.

(c) Inspections shall be conducted utilizing a single oversight instrument. All deficiencies and/or corrective action will be overseen by the Office. Each Crisis Stabilization Center shall undergo an unannounced inspection which will occur prior to renewal of the Operating Certificate.

(d) At the start of the inspection, the inspector(s) will meet with the Crisis Stabilization Center administrative staff to explain the purpose and scope of the inspection and request any documentation (e.g., policies; staffing information; etc.) that may be needed to facilitate the review.

(e) The inspection will include, but not be limited to, the following areas of review:

(1) on-site inspection of service appearance, conditions and general safety;

(2) evaluation of the sponsor, its management systems, and procedures;

(3) Recipient case record review;

(4) interviews of staff and Recipients;

(5) examination of staffing patterns and staff qualifications;

(6) analysis of statistical information contained in reports required to be submitted by the service;

(7) compliance with the reporting requirements;

(8) verification of staff credentials, and staff training, as applicable;

(9) incident reporting requirements; and

(10) such other operating areas of activities as may be necessary or appropriate to determine compliance with applicable laws and regulations.

(f) At the conclusion of the inspection, the inspector(s) will meet with the Crisis Stabilization Center's administrative staff to discuss all deficiencies identified during the inspection.

(g) Upon completion of the inspection, a written report will be provided to the Crisis Stabilization Center which describes the results of the inspection, including each regulatory deficiency identified, if any. The Crisis Stabilization Center shall take all actions necessary to correct all deficiencies reported. The Crisis Stabilization Center shall submit a plan of correction to the Office within 30 days, which shall state the specific actions taken or planned actions to achieve compliance with identified requirements. Any planned actions described in the plan of correction must be accompanied with a timetable for their implementation.

(h) If the Crisis Stabilization Center fails, within the specified or an otherwise reasonable time, to correct any reported deficiencies, or fails to maintain satisfactory compliance with applicable laws, rules and regulations, the Office may revoke, suspend or limit the operating certificate or license or levy a civil fine for such failures, in accordance with applicable regulations.

(i) Concurrently, each Crisis Stabilization Center shall undergo a fiscal viability review which will include an assessment of the financial information of the Crisis Stabilization Center. Such information shall be submitted in intervals and in a form prescribed by the Office, for compliance with minimum standards established by the Office, in order to determine the Crisis Stabilization Center's fiscal capability to effectively support the authorized services.

(j) Crisis Stabilization Centers that fail to meet the minimum standards of the Office shall be required to submit a corrective action plan setting forth the specific actions to be taken to meet the minimum standards within a reasonable time frame.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.7 Organization and administration

(a) Governing Body or Sponsor: The Crisis Stabilization Center shall identify a Governing Body or Sponsor (Governing Body) which shall have overall responsibility for the operation of the Center. The Governing Body may delegate responsibility for the day-to-day management of the Center to appropriate staff in accordance with the organizational plan approved by the Office. No individual shall serve as both a member of the Governing Body and as paid staff of the Crisis Stabilization Center without prior approval of the Office.

(b) For hospital-based Crisis Stabilization Centers, the Governing Body of the hospital shall be responsible for the overall operation and management of the Crisis Stabilization Center. The Governing Body may delegate responsibility for the day-to-day management of the Center to appropriate staff pursuant to an organizational plan approved by the Office. No individual shall serve as both member of the Governing Body and of the paid staff of the Crisis Stabilization Center without prior approval of the Office.

(c) For Crisis Stabilization Centers, the Governing Body shall delegate responsibility for the day-to-day management of the Crisis Stabilization Center in accordance with the written plan of organization provided for in paragraph (e)(2) of this section.

(1) Onsite direction shall be delegated to an individual who shall be known as the Program Director and who shall meet the qualifications specified in section 600.11(f) of this Part.

(2) The Program Director shall be employed by the Crisis Stabilization Center as a full-time employee.

(3) Overall administrative direction may be the responsibility of the Program Director or may be delegated by the Governing Body to an individual who shall meet qualifications that are acceptable to the Office.

(d) The Governing Body shall comply with all requirements set forth in 10 NYCRR Part 405 .2 as well as requirements established by appropriate local, State and Federal standard-setting bodies.

(e) The Governing Body shall be responsible for the following duties:

(1) to develop an organizational plan which indicates lines of accountability and the qualifications required for staff positions. Such plan may include the delegation of the responsibility for the day- to-day management of the program to a Program Director who shall be a member of the professional staff employed by the Crisis Stabilization Center. Where such Crisis Stabilization Center is hospital-based, the Program Director shall report to the Director of Psychiatry or Medical Director of the host hospital.

(2) to develop written personnel policies which shall prohibit discrimination on the basis of race or ethnicity, religion, disability, gender identity or sexual orientation, marital status, age, documentation status, or national origin, as well as, written policies on affirmative action which are consistent with the affirmative action and equal employment opportunity obligations imposed by title VII of the Civil Rights Act, Federal Executive Order 11246, the Rehabilitation Act of 1973, section 504, as amended, and the Vietnam Era Veteran's Readjustment Act;

(f) The Governing Body shall develop, approve, periodically review and revise as appropriate all programmatic and administrative policies and procedures. Such policies and procedures shall include, but are not limited to the following:

(1) policies that guide efforts to reduce disparities in access, quality of care and treatment outcomes for underserved/unserved and/or marginalized populations, including but not limited to: people of color, members of the LBGTQ+ community, older adults, pregnant persons, Veterans, individuals who are hearing impaired, individuals with limited English proficiency, immigrants, individuals with intellectual/developmental disabilities and all justice system-involved populations;

(2) policies that ensure that efforts are made to employ staff that are proficient in the most prevalent languages spoken by service Recipient;

(3) policies and procedures governing Recipient records which ensure confidentiality consistent with the Mental Hygiene Law, sections 33.13, 33.14 and 33.16, 45 C.F.R. parts 160 and 164 and which provide for appropriate retention of such records pursuant to section 590.12 of this Title;

(4) policies regarding the confidentiality of substance use disorder treatment records in accordance with state and federal law including 42 CFR Part 2 and HIPAA;

(5) policies that ensure the protection of Recipients' rights;

(i) At a minimum these policies shall establish and describe a Recipient's grievance procedure.

(ii) The Crisis Stabilization Center shall post a statement of Recipients' rights in a conspicuous location easily accessible to the public and provide a copy to service Recipients.

(6) policies for training staff to recognize the signs and symptoms of severe reactions to or overdose on substances including but not limited to alcohol, sedative-hypnotics, opioids, stimulants, cannabis and synthetic cannabinoids, and the appropriate interventions when overdose occurs in accordance with guidance from the Office

(i) Training on these interventions shall include but not be limited to education about the use of naloxone overdose prevention kits.

(ii) Centers must develop and implement a plan to have staff trained in the use of a naloxone overdose prevention kit and must ensure that such kit and appropriately trained staff are available during all program hours of operation.

(iii) Staff should be trained that overdose risk can exist with any illicit substance use, not limited to known opioid use or intended substance of choice.

(7) policies for the provision of overdose prevention education and training and availability of overdose prevention kits or prescriptions for service Recipients and their collaterals.

(g) Cultural and linguistic competency.

(1) Crisis Stabilization Centers shall review demographic data for the Crisis Stabilization Center's Catchment Area to determine the cultural and linguistic needs of the population as well as disparities in access to treatment. Staff shall be trained to be aware and respond appropriately to the cultural and linguistic needs of the Catchment Area and develop a plan to address disparities in treatment access.

(2) Crisis Stabilization Centers shall ensure provision of language assistance services at no cost to the Recipient and/or their family/collaterals and shall make all necessary documents available in the Recipient's preferred language. Language access services will be made available in such a way that assessment or treatment activities will not be delayed. Crisis Stabilization Centers are responsible for ensuring the competence of individuals providing language assistance, recognizing that the use of untrained individuals and/or minors as interpreters should be avoided.

(3) Crisis Stabilization Centers shall provide easy-to-understand print and multimedia materials and signage in the languages commonly used by the populations in the service area, with a focus on the varied literacy levels among the service user population.

(h) County planning.

(1) Crisis Stabilization Centers shall participate in county and community planning activities annually, and as additionally needed, to ensure, maintain, improve or develop community services that demonstrate recovery outcomes. These outcomes include, but are not limited to, quality of life, socio-economic status, entitlement status, social networking, coping skills and reduction in use of crisis services.

(i) Incidents.

(1) The Crisis Stabilization Center shall ensure the timely reporting, investigation, review, monitoring and documentation of incidents pursuant to the Mental Hygiene Law and 14 NYCRR Part 524.

(i) The Crisis Stabilization Center shall utilize New York Incident Management Reporting System reports or other available incident/data analysis reports to assist in risk management activities and compile and analyze incident data for the purpose of identifying and addressing possible patterns and trends to improve service delivery.

(2) Incident Training.

(i) All new staff shall receive training which must include at a minimum, the definition of incidents, reporting procedures, an overview of the review process, and the role of risk management.

(ii) Refresher incident reporting training shall be conducted at least annually for all staff and evidence of such training must be recorded in the staff personnel file.

(3) For hospital-based Centers, the hospital's incident review committee shall review incidents, make recommendations and ensure implementation of action plans with the Crisis Stabilization Center's Program Director.

(j) Non-discrimination. No Recipient that meets the criteria for treatment may be denied a based solely on the Recipient's:

(1) prior treatment history;

(2) referral source;

(3) pregnancy;

(4) history of contact with the criminal justice system;

(5) HIV and AIDS status;

(6) physical or mental disability;

(7) lack of cooperation by collaterals in the treatment process;

(8) toxicology test results;

(9) use of any illicit or prescribed substances, including but not limited to, benzodiazepines;

(10) use of medications for substance use disorder prescribed and monitored by a physician, physician's assistant or nurse practitioner;

(11) age;

(12) actual or perceived gender;

(13) national origin;

(14) race/color;

(15) actual or perceived sexual orientation;

(16) marital status;

(17) military status;

(18) familial status; or

(19) religion.

(k) Posting notices. The Crisis Stabilization Center shall ensure the posting of notices displaying the availability of on-site peer counseling/mutual-aid services and the address and telephone number of local off-site peer counseling/mutual aid services.

(l) The Crisis Stabilization Center will have memorandums of understanding (MOUs) with any available crisis residential services or comparable services for Recipients determined to need crisis stabilization beyond 23 hours and 59 minutes.

(m) Crisis Stabilization Centers shall develop policies and procedures describing Recipient drop off from law enforcement, emergency medical services, mobile crisis and other outreach and treatment teams.

(n) Supportive Crisis Stabilization Centers shall develop policies and procedures describing how Recipients will access services identified in screening and assessment that are not provided by the Crisis Stabilization Center and follow-up to ensure such services are accessed.

(o) The Commissioners or their designee may prevent new presentations to the Crisis Stabilization Center emanating from emergency medical services, ambulance services and law enforcement if a conclusion is reached that the ability of the Crisis Stabilization Center to deliver quality service would be jeopardized.

(1) The Commissioners or their designee shall review the continued necessity for such prevention at least once every twenty-four hours according to a mutually developed plan.

(2) The Crisis Stabilization Center shall develop a contingency plan with other local affiliated hospitals, emergency medical services and law enforcement for the prevention of new presentations during periods of high demand and overcrowding.

(3) Where a Crisis Stabilization Center prevents new presentations pursuant to this paragraph, the Crisis Stabilization Center must notify the appropriate OMH Field Office and OASAS Regional Office according to a mutually developed plan.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.8 Screening and Assessment

(a) Each Crisis Stabilization Center shall maintain service criteria which are consistent with its goals and objectives, and which are subject to the approval of the Office. Screening, assessment and services shall be in accordance with the provisions of this Part and on the forms prescribed therefore.

(b) Information gathering.

(1) The Crisis Stabilization Center shall access the Psychiatric Services and Clinical Knowledge Enhancement System (PSYCKES) or other available electronic health records or database(s) with the Recipient's consent, to identify the Recipient's treatment providers and prior medication use and/or treatment engagement history.

(2) The Crisis Stabilization Center shall document demonstrated efforts to identify and contact with the Recipient's consent, the Recipient's treatment team and other relevant providers (e.g., housing providers, care coordination, managed care organizations), and collaterals.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.9 Services

(a) Receiving services at a Crisis Stabilization Center is determined through screening and assessment by professional staff. Stabilization services are identified in an individual service plan.

(b) Crisis Stabilization Centers shall operate, or develop a MOU with, the following program types in order to facilitate rapid access and documented linkages to follow-up services:

(1) OASAS inpatient withdrawal and stabilization certified pursuant to Part 816 of this Title;

(2) OASAS residential treatment consisting of at minimum stabilization services, certified pursuant to Part 820 of this Title;

(3) Emergency Department and/or Comprehensive Psychiatric Emergency Services;

(4) OMH Licensed Crisis Residential Services;

(5) OASAS and OMH certified and licensed outpatient programs;

(6) Other behavioral health crisis or emergency services;

(7) Agencies delivering harm reduction services; and

(8) Other supportive services as appropriate.

(1) Triage, Screening and Assessment of all presenting individuals which includes screening for risk of harm to self and/or others, risk of substance use/withdrawal and any immediate physical health needs;

(2) Therapeutic interventions that may include crisis counseling, psychoeducation, crisis de-escalation/intervention services;

(3) Peer Support Services;

(4) Ongoing observation;

(5) Care collaboration with a Recipient's friends, family and/or care providers (with consent); and

(6) Discharge and After Care Planning

(d) In addition to the above-mentioned services, Intensive Crisis Stabilization Centers must also provide, where appropriate:

(1) Psychiatric Diagnostic Evaluation and Plan;

(2) Psychosocial Assessment;

(3) Medication Management and Training;

(4) Medication for Addiction Treatment (MAT);

(5) Medication Therapy; and

(6) Mild to Moderate Detoxification Services.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.10 Discharge Planning and Referral

(a) Discharge criteria.

(1) The provisions of section 29.15 of the Mental Hygiene Law shall not apply to the discharge of a Recipient from a Crisis Stabilization Center.

(2) Discharge planning shall be conducted for all Recipients at a Crisis Stabilization Center who have been determined to require additional mental health and/or substance use services.

(3) Discharge planning criteria shall include at least the following activities prior to a Recipient leaving the Crisis Stabilization Center:

(i) a review of the Recipient's psychiatric, substance use and physical health needs;

(ii) completion of referrals which include documented linkages to appropriate community services providers, in collaboration with the Recipient and Center staff, to address the Recipient's identified needs;

(iii) in collaboration with the Recipient receiving services, the Center shall arrange for appointments with community providers which shall be made as soon as possible after leaving the Center;

(iv) each Recipient shall be given the opportunity to participate in the development of their person-centered discharge plan. Absent the objection of the Recipient and when clinically appropriate, reasonable attempts shall be made to contact collaterals for their participation in the transition planning program. However, no person or collaterals shall be required to agree to the Recipient's discharge. A notation shall be made in the Recipient's record if such Recipient objects to the discharge plan or any part thereof; and

(v) contact information for local and national mental health and substance use disorder crisis services.

(4) The discharge plan, or at a minimum that portion of the Plan which includes referral information, must be given to the Recipient, and any collateral with Recipient consent, prior to the Recipient leaving the program.

(5) The Crisis Stabilization Center shall document linkages to after-care appointment(s) and verify those appointments occurred and follow up with Recipients to ensure satisfactory linkage to care.

(6) Where there is the risk of opioid related overdose, the Recipient, and their family/collateral(s), shall be offered overdose prevention education and training, and a naloxone kit or prescription.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.11 Staffing

(a) Crisis Stabilization Centers shall continuously employ an adequate number of staff and an appropriate staff composition to carry out their goals and objectives as well as to ensure the continuous provision of sufficient ongoing and emergency supervision. Each Crisis Stabilization Center shall submit a staffing plan which includes the qualifications and duties of each staff position by title. The staffing plan and its rationale shall be subject to approval by the Office. The Office must be notified of and approve significant changes from the approved staffing plan.

(b) This staffing plan shall be based on the population to be served and the services to be provided.

(d) Supervisory staff: Crisis Stabilization Centers shall have a continuous provision of sufficient ongoing and emergency supervision.

(e) Intensive Crisis Stabilization Centers shall be overseen by a Medical Director who is a physician licensed and currently registered as such as by the New York State Education Department and shall have at least one year of education, training, and/or experience in mental health or substance use disorder services.

(f) Intensive Crisis Stabilization Centers shall have prescribing professionals on duty or on call at all times who can prescribe approved medications, including buprenorphine, consistent with state and federal rules.

(g) Program Director. Crisis Stabilization Centers shall have a Program Director pursuant to this Part for administrative oversight and quality assurance. Program director is a professional staff or certified or credentialed peer with at least two years of full-time clinical work experience in the mental health or substance use disorder treatment field and at least one year of which included supervisory responsibilities.

(h) All staff shall have qualifications appropriate to assigned responsibilities as set forth in the staffing plan and shall practice within the scope of their professional discipline and/or assigned responsibility. All staff shall submit documentation of their training and experience. Such documentation shall be verified and retained on file by the agency.

(i) The staffing plan shall include those clinical and professional staff as defined in this Part in sufficient type, schedules and numbers to meet projected volume and Recipient need.

(j) Criminal history information reviews required pursuant to Sections 19.20, 19.20a and 31.35 of the Mental Hygiene Law, Sections 424-a and 495 of the Social Services Law, and 14 NYCRR 550 and 805, shall be conducted in accordance with such laws and regulations and any guidance issued by the Offices. All prospective employees, contractors and volunteers of Crisis Stabilization Centers licensed pursuant to article 36 of the Mental Hygiene Law who have the potential for, or may be permitted, regular and substantial unsupervised or unrestricted contact with Recipients shall submit to a criminal history information review. All staff with the potential for regular and substantial contact with Recipients in performance of their duties shall submit to clearance by the New York Statewide Central Register of Child Abuse and Maltreatment. Staff who have not been screened by the New York Statewide Central Register of Child Abuse and Maltreatment shall not perform duties requiring contact with Recipients unless there is another staff member present.

(k) Multi-disciplinary team: A Crisis Stabilization Center as approved pursuant to this Part, shall be staffed with a multidisciplinary team capable of meeting the needs of presenting individuals which shall include, but not be limited to:

(1) Registered Nurse, who is onsite twenty-four hours a day, seven days a week, to ensure adequate screening, assessment and care for all Recipients.

(2) A psychiatrist or psychiatric nurse practitioner;

(3) A credentialed alcoholism and substance abuse counselor, and

(4) A certified peer specialist, as defined in this Part.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.12 Case record

(a) There shall be a complete legible case record maintained for each Recipient at a Crisis Stabilization Center.

(b) The case record shall be available to all clinical staff of the Crisis Stabilization Center who are participating in the treatment of the Recipient consistent with 45 C.F.R. Parts 160 and 164 and 42 CFR Part 2.

(c) All Recipients from the Crisis Stabilization Center must have a case record which, at a minimum, includes a presentation note which indicates:

(1) a brief description of the presenting problem, critical needs and overall conditions;

(2) a brief description of the care and treatment required to address the Recipient's needs safely and effectively during the initial period after screening and assessment; and

(3) a brief description of the Crisis Stabilization Center's attempts to contact collaterals.

(d) Case records for Recipients shall include:

(1) Recipient identifying information and available substance use, psychiatric, medical and relevant social history, including the Recipient's residential situation and the details of the circumstances leading to the Recipient's presentation at the Center, and the name of the person or persons who have referred or brought the Recipient to the Center, if any. In the case of Recipients brought to the Center by law enforcement, the officer(s) should be interviewed and identified in the case record;

(2) diagnosis if applicable;

(3) assessment of the Recipient's treatment needs based upon substance use, psychiatric, physical, social and functional evaluations;

(4) individual service plan;

(5) reports of all substance use-related, mental and physical diagnostic exams, assessments, tests, and consultations;

(6) progress notes which relate to goals and objectives of treatment and document services provided.

(7) notes which relate to special circumstances and clinically relevant incidents;

(8) dated and signed orders for all medications;

(9) discharge plan, including demonstrated linkages to referrals to other programs and services;

(10) consents as appropriate pursuant to this Part; and

(11) documentation of attempts to contact Collaterals.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.13 Premises

(a) A Crisis Stabilization Center shall maintain premises that are adequate and appropriate for the safe and effective operation of a Crisis Stabilization Center in accordance with the following:

(1) the Center shall be maintained in a good state of repair and sanitation;

(2) the Center's space shall be both adequate and appropriate for the comfort and convenience of those waiting for and receiving services;

(3) the Center's space shall be constructed using trauma informed principles;

(4) the Center shall have sufficient, appropriate and comfortable furnishings maintained in good condition and appropriate equipment and material for the population served;

(5) the Center's space shall be sufficient to provide safety, and to allow for a reasonable degree of privacy consistent with the effective delivery of services;

(6) the Center's space shall include examination rooms;

(7) the Center's space shall be both adequate and appropriate for the maintenance of privacy for interviews between staff members and Recipients served;

(8) the premises shall be reasonably maintained to ensure access to services by all Recipients;

(9) the Center shall provide and ensure accessibility for persons with disabilities to program and bathroom facilities, including showers;

(10) the Center shall provide appropriate access to telephone, internet, and food for all Recipients;

(11) the Center shall ensure access to laundry facilities;

(12) the Center shall provide for controlled access to and maintenance of medications and supplies in accordance with all applicable Federal and State laws and regulations;

(13) the Center shall provide for controlled access to and maintenance of records;

(14) the Center shall provide sufficient separation and supervision of various treatment populations, including adults and children, to ensure the safety of the population receiving crisis stabilization services;

(15) the Center shall provide a separate entrance and triage area for law enforcement drop-offs; and

(16) where minors under the age of 18 are receiving services in the Center, they shall not be commingled with adults in areas of the space where the adults are receiving services, nor shall they receive services in groups which include adults.

(i) In extraordinary circumstances, such commingling may be permitted upon written approval of the office, on a situational and time-limited basis.

(b) Observation chairs shall be located in the Crisis Stabilization Center as approved by a plan submitted to the Office.

(c) Crisis Stabilization Centers shall ensure life safety on the premises by possession of a certificate of occupancy in accordance with the Building Code of New York State and the Property Maintenance Code of New York State (19 NYCRR Chapter XXXIII, Subchapter A, Parts 1221 and 1226) or comparable local codes.

(d) Facilities shall comply with all local zoning and building laws, regulations and ordinances.

(e) Heating, lighting and ventilation shall be adequate for the comfort and well-being of the Recipients and the employees.

(f) Copies of all local inspection reports, and other relevant inspection reports, shall be maintained and available upon request.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 600.14 Statistical records and reports

(a) Statistical information shall be prepared and maintained as may be necessary for the effective operation of the Crisis Stabilization Center including but not limited to quality measures and monitoring of outcomes and as may be required by the Office.

(b) Statistical information shall be reported to the Office in a manner and within time limits specified by the Office.

(c) Statistical reporting shall be the responsibility of an individual whose name and title shall be made known to the Office.

History

Adopted New York State Register June 29, 2022/Volume XLIV, Issue 26, eff. 6/13/2022

Chapter XIV Office for People With Developmental Disabilities

Part 602 Uniform Hearing Procedures

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.1 Applicability

This Part shall apply in the following appeal proceedings and requests for declaratory rulings brought by or before the Office for People With Developmental Disabilities pursuant to the Mental Hygiene Law and/or regulations issued pursuant thereto:

(a) certificate of need hearings, pursuant to Mental Hygiene Law, section 16.09 and Part 620 of this Title;

(b) hearings requested after denial of application for or limitation of initial operating certificate, pursuant to Mental Hygiene Law, section 16.17;

(c) hearings on suspension, revocation or limitation of an operating certificate, or the imposition of a fine on the holder thereof, pursuant to Mental Hygiene Law, section 16.17;

(d) hearings on the denial of the renewal of an operating certificate, pursuant to Mental Hygiene Law, section 16.17;

(e) audit appeal hearings, except appeals of audits pursuant to sections 681.12 and 690.12 respectively of this Title;

(f) hearings requested on the temporary suspension or limitation of an operating certificate, pursuant to Mental Hygiene Law, section 16.17 (b);

(g) ICF/DD and specialty hospital second level rate appeals, and second level fee and rent appeals for community residences, pursuant to sections 681.12(d), 680.12(e), and 686.13(f), respectively, of this Title; and

(h) petitions seeking declaratory rulings pursuant to section 204 of the State Administrative Procedure Act.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.2 General procedures

(a) Notice of proposed action and opportunity to be heard. The office, (see glossary), shall issue a notice of the OPWDD's decision to take action, which shall include:

(1) notice of the proposed action and a general description of the reasons therefor; and

(2) notice of any rights pursuant to law or regulation to appeal and to request a hearing on the matter.

(b) Appeal requests.

(1) The proposed action shall become effective on the date specified in the notice unless:

(i) the party makes a timely request for an appeal in writing, served in person or by mail; or

(ii) the commissioner extends, in writing, the time period specified in the notice of proposed action.

(2) The time within which the request shall be made depends upon the time limit prescribed by this Part for the specific type of appeal.

(1) A notice of appeal or hearing shall include:

(i) notice of the date, time, place of the hearing, or procedure to perfect the appeal and the name and address of the hearing officer;

(ii) a statement of the legal authority and jurisdiction under which the proceeding is to be held;

(iii) notice that failure to appear at a hearing or to process an appeal as directed may result in a recommendation of default by the hearing officer; and

(iv) notice that interpreter services are available for deaf or non-English speaking witnesses or parties, at no charge, upon written request within a reasonable time prior to any scheduled hearing.

(2) The statement of issues shall contain:

(i) a reference to the particular sections of the statutes and regulations at issue, if any; and

(ii) a specific statement of the matters asserted or at issue.

(3) Notice of hearing and statement of issues shall be served on the parties at least 10 days prior to any scheduled hearing date.

(d) Adjournments.

(1) Except for good cause shown, requests for adjournments shall be made to the hearing officer at least three days prior to the commencement of the hearing or date any written submission is due.

(2) Other adjournments may be granted by the hearing officer for good cause and with due regard for the convenience of all parties.

(3) All parties shall be notified in writing of adjournments to a specified date, time and place.

(e) Answer or responsive pleadings.

(1) Except as otherwise provided in this Part, a party may serve on the hearing officer, the individual or division of the office issuing the statement of issues and all other parties to the proceeding an answer or responsive pleading signed by that party. The answer or responsive pleading shall specify which allegations are admitted, which allegations are denied, and those allegations for which that party has insufficient knowledge or information upon which to form a belief.

(2) The hearing officer may require a party to submit an answer or responsive pleading.

(3) The answer or responsive pleading shall be served no later than five days before the initial hearing date.

(f) Service of notice and other papers.

(1) A notice of hearing and all other notices, orders and communications from the office shall be deemed to have been duly served if properly postpaid and addressed to the person to be notified or communicated with at the address last given by him or her in writing to the commissioner and delivered by ordinary mail, or by registered or certified mail, return receipt requested, or if delivered to such address by an employee or agent of the OPWDD.

(2) For the purpose of calculating time of notice:

(i) Personal service shall be considered effected upon the date of delivery to the last address given in writing to the commissioner.

(ii) Service by ordinary mail shall be considered effected on the fifth day after mailing.

(iii) Service by registered or certified mail, return receipt requested, shall be considered effected upon acceptance.

(g) Discovery.

There shall be no discovery, except as otherwise provided in this Part.

(h) Hearing officer.

(1) The hearing officer shall be an attorney-at-law who is a member in good standing of the New York State Bar.

(2) No hearing officer shall preside who has any interest or bias with respect to the matter involved in the proceeding. Upon the filing in good faith by a party of a timely and sufficient written request for removal of a hearing officer for interest, bias or failure to quality, the commissioner shall determine the matter as part of the record in the case after all parties have been given the opportunity to submit written comment. Hearing officers may be employees of OPWDD and such employment and responsibilities thereof, without an additional showing, shall not be considered an interest, bias or failure to qualify under this section. However, hearing officers who are employees of OPWDD shall not have responsibilities which involve the legal representation of OPWDD's position in any administrative hearings or appeals.

(3) The hearing officer shall conduct the hearing in a fair and impartial manner.

(4) The hearing officer shall have the power to:

(i) rule upon requests, including requests for adjournments;

(ii) set adjourned dates, times and places of hearings;

(iii) administer oaths and affirmations;

(iv) issue subpoenas requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers and other evidence, provided that each party shall effect his or her own service and bear the cost of appropriate fees;

(v) examine witnesses;

(vi) admit and exclude evidence and witnesses;

(vii) limit the number of times any witness may testify, repetitious examination or cross-examination, and the amount of corroborative or cumulative testimony;

(viii) request and/or hear oral argument;

(ix) request written arguments required by this Part or in addition to those required by this Part;

(x) make maximum use of preliminary steps to refine issues and to encourage resolution by the parties; and

(xi) do all acts and take all measures necessary for the maintenance of order and the efficient conduct of the hearing and processing of an appeal.

(5) Upon being notified that a hearing officer declines or fails to serve, or in the case of death, resignation or removal of the hearing officer, a successor hearing officer shall be designated by the commissioner to continue the proceeding.

(6) The designation of a hearing officer shall be in writing and made a part of the hearing record.

(i) Conference(s).

(1) At any time prior to the issuance of the commissioner's determination, the hearing officer may direct the parties to appear for a conference to consider matters which will tend to simplify the issues or expedite the proceeding. Such conferences may be conducted by telephone.

(2) Nothing contained herein shall be deemed to prevent the parties from holding conferences on their own initiative to consider matters which will tend to simplify the issues or expedite the proceeding.

(3) The conference may be transcribed or the hearing officer may reduce results of the conference to writing in a document which will be made part of the record. A conference may also be conducted without becoming part of the record.

(j) Stipulations and consent orders.

(1) At any time prior to the issuance of the commissioner's determination, the parties may enter into a stipulation for the resolution of any or all issues.

(2) The commissioner may issue a consent order upon agreement or stipulation of the parties. A consent order shall have the same force and effect as the commissioner's determination issued after a hearing.

(k) The appeal.

(1) Appearances.

(i) A party may appear in person or be represented by an employee or member of its board of directors, if such representative is designated in writing by the board of directors to represent the party, or by an attorney who is a member in good standing of the Bar of New York State. Any such attorney shall file a written notice of appearance. If a party appears by an attorney or a representative designated by the board, service of papers thereafter shall be made upon such attorney or representative.

(ii) In the event a party or its representative does not appear at a scheduled hearing, or fails to meet other deadlines imposed by law, regulation or the hearing officer without prior notice of an inability to appear, the hearing officer may recommend to the commissioner a default decision against that party.

(2) Consolidation and severance.

(i) In proceedings which involve common questions of fact, the hearing officer, upon his or her own motion, or upon the motion of any party, may order a consolidation of actions or a joint hearing or appeal proceeding of any or all issues to avoid unnecessary delay and cost.

(ii) The hearing officer may order a severance of the hearing or appeal proceeding and hear or determine separately any issue in the proceeding to avoid prejudice or inconvenience.

(3) Intervention.

(i) At any time after the institution of a proceeding, the hearing officer may permit others to intervene upon a verified petition, a showing of good cause and with the consent of all parties.

(ii) The petition of anyone requesting intervention as a party shall state:

(a) the petitioner's interest in the matter at issue and the reasons why petitioner is so situated that the disposition may, as a practical matter, impair or impede his or her ability to protect that interest, and why petitioner's interest is not adequately represented by the existing parties;

(b) the nature of the evidence petitioner intends to present and the names of witnesses, if any;

(d) any other reason why the petitioner should be allowed to intervene.

(4) Conduct of hearing and evidence.

(i) The hearing officer shall not be bound by the rules of evidence observed by courts, except that the rules of privilege recognized by law shall be respected.

(ii) The hearing officer shall conduct the hearing.

(iii) Each party shall have the right to make opening and closing statements, present evidence and witnesses, and cross-examine witnesses.

(iv) Adjournments may be granted by the hearing officer for good cause and with due regard for the convenience of all parties.

(v) All parties shall be notified in writing of adjournments to a specified date, time and place.

(vi) Unless otherwise ordered in the public interest by the commissioner, or otherwise provided in this Part, hearings shall be open to the public.

(vii) Each witness shall be sworn or give an affirmation.

(viii) If evidence at a hearing relates to the identity, condition or clinical record of a person (see glossary), the hearing officer shall exclude all others from the room except parties to the proceeding, their counsel, the witness being examined, others determined by the hearing officer to be essential to the presentation of its case by a party and any others the presence of whom is consented to by all parties, the hearing officer and the person whose identity, condition, or clinical record is being examined. The record of this proceeding shall not be available to anyone outside the OPWDD, other than a party to the proceeding or his or her counsel, except by order of a court of competent jurisdiction.

(ix) All documentary evidence may be received in the form of copies, excerpts, or by incorporation by reference.

(x) All parties shall have the right to make oral arguments before a hearing officer, which shall be included in the record of the hearing. Such oral argument may be curtailed in the discretion of the hearing officer, provided that a party shall be given the opportunity to submit his or her argument in writing.

(xi) A verbatim recording of the proceedings shall be made by whatever means the OPWDD deems appropriate. A transcription of the recording shall be made available to any party requesting it upon payment of the cost of transcription. If more than one party requests a transcript, the cost may be allocated between the parties.

(5) Memoranda of law and legal briefs may be required by the hearing officer, or may be submitted by any party.

(i) The hearing officer will fix the time within which memoranda of law or legal briefs may be filed. Memoranda of law or legal briefs received subsequent to the time specified need not be considered.

(ii) The party submitting the memoranda of law or legal briefs must provide copies to all parties.

(6) The record of the appeal shall include: notice of proposed action; the initial request of appeal; the notice of hearing or appeal; statement of issues; answer and any other responsive pleadings; letter appointing hearing officer; motions and requests submitted and rulings thereon; transcripts or recordings of conferences or testimony taken at the hearing; exhibits; stipulations, if any; memoranda of law, legal briefs and other written material that may have been submitted and filed in connection with the appeal; the hearing officer's initial and final reports and recommendations; any decision, determination, or order rendered; and any other jurisdictional documents, or other documents or material properly submitted into the record.

(l) Hearing officer's initial report.

After receipt and review of any recording or transcript and any legal briefs and any other material properly a part of the record and memoranda of law, the hearing officer shall prepare the initial report, including findings of fact and proposed outcome(s).

(m) Written exceptions and arguments.

(1) Within 20 days after service of the hearing officer's initial report, each party may submit written exceptions to and arguments on that report.

(2) Within 10 days after service of the exceptions and arguments, each party may submit written replies to the exceptions and arguments.

(3) The exceptions and arguments and the replies shall be submitted to the hearing officer, with a copy served on each of the other parties.

(4) Unless the hearing officer grants an extension of time, exceptions, arguments and replies submitted after the prescribed time need not be considered.

(n) Hearing officer's final report and recommendation to the commissioner.

After receipt of exceptions, arguments and replies, if any, the hearing officer shall submit a final report, including findings of fact and proposed outcome(s), to the commissioner, along with the record of the hearing, including any exceptions, arguments and replies received.

(o) Reopening hearing to present new evidence.

After the conclusion of a hearing, but prior to the commissioner's determination, a hearing may be reopened for the presentation of new evidence upon petition and in the discretion of the hearing officer. The petition to reopen the hearing shall state, in detail, the nature the new evidence and the reasons for the failure to submit the evidence prior to the conclusion of the hearing. The commissioner may, upon his or her own motion and upon reasonable notice, reopen a hearing for the presentation of additional evidence.

(p) The commissioner's decision.

After receipt of the hearing officer's final report and recommendation and the record, the commissioner shall either:

(1) upon his or her own motion and upon reasonable notice, reopen the appeal for the presentation of additional evidence; or

(2) direct the hearing officer to make additional findings, recommendations or otherwise clarify his/her report; or

(3) make a final determination. The commissioner's determination shall be in writing and shall contain findings of fact and, if applicable, conclusions of law. A copy of the commissioner's determination shall be served on the parties.

(q) Finality.

The commissioner's determination is final five days after mailing.

(r) Waiver of rules.

Any of the rules in this Part may be waived by agreement of the parties and the commissioner or, if a hearing officer has been appointed by agreement of the parties with the consent of the hearing officer and the commissioner.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.3 Hearing procedures: certificate of need hearings

(a) Applicability.

In addition to section 602.2 of this Part, this section shall apply to hearings held pursuant to Part 620 of this Title as required by Mental Hygiene Law, section 16.09. W here a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

(b) Hearing requests.

(1) The proposed action shall be final, unless a hearing is requested in writing to the commissioner within 10 days of service of the notice of the proposed action.

(2) Hearings may be held at the request of any party permitted to request a hearing pursuant to Part 620 of this Title.

(3) The request shall include a declaration of the issues alleged to be involved and documentation of the party's position as to each issue it has identified.

(4) The commissioner shall issue to the parties a notice of hearing; and a statement of issues. The commissioner shall consider those requests for amendments to the statement of issues which he or she receives at least seven days prior to the initial hearing date.

The party requesting the hearing shall present its case first. The burden of proof shall be on the party requesting the hearing to demonstrate that the commissioner's decision to approve or disapprove the application for the certificate of need is not supported by facts and conclusions which address the standards for approval provided in Part 620 of this Title.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.4 Hearing procedures: denial or limitation of initial operating certificate hearings

(a) Applicability.

In addition to section 602.2 of this Part, this section shall apply to hearings held pursuant to Mental Hygiene Law, section 16.05, which provides that the commissioner shall not deny any application or limit any initial operating certificate without giving the applicant an opportunity to be heard. Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

(b) Hearing requests.

The decision to deny or limit an initial operating certificate shall be final, unless the applicant requests a hearing in writing within 10 days of service of notice of the proposed action to limit or deny. Such request shall be made to the commissioner, and shall include a copy of OPWDD's notice of proposed action. The request must also include a declaration of the issues alleged to be involved, and documentation of the provider's position as to each identified issue.

The hearing shall commence within 40 days of receipt of the hearing request, unless the hearing officer grants an adjournment.

(d) Burden of proof.

The applicant shall present its case first. The burden of proof shall be on the applicant to demonstrate his or her ability to operate a facility in full compliance with all relevant laws and regulations, and of fulfillment of all criteria for initial certification.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.5 Hearing procedures: current operating certificate suspension, revocation, limitation or fine hearings

(a) Applicability.

In addition to section 602.2 of this Part, this section shall apply to hearings held pursuant to Mental Hygiene Law, section 16.17(a), which provides that the commissioner may not revoke, suspend or limit an operating certificate fine the holder thereof for failure to comply with the terms of the operating certificate, or any applicable statute, rule or regulation, without giving the provider notice and opportunity to be heard. Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

(b) Hearing requests.

The decision to revoke, suspend or limit an existing operating certificate, or to fine the holder thereof, shall be final, unless the provider requests a hearing in writing within 30 days of service of notice of the proposed action. Such request shall be made to the commissioner, and shall include a copy of OPWDD's notice of proposed action. The request must also include a declaration of the issues alleged to be involved, and documentation of the provider's position as to each identified issue.

Except as provided for in Mental Hygiene Law, section 16.17(b), if the provider makes a valid request for a hearing, the execution of any proposed action to revoke, suspend, limit or fine shall be stayed pending the commissioner's determination.

(d) The provider must serve on the division of the office which issued the statement of issues and the hearing officer an answer, signed by the provider no later than three days before the initial hearing date.

(e) Burden of proof.

The OPWDD shall present its case first. The burden of proof shall be on the OPWDD to present evidence of the provider's failure to operate the facility in full compliance with all relevant laws and regulations at the time of the survey of the facility by OPWDD.

(f) When the office seeks the revocation, suspension [of] or limitation of an operating certificate previously granted by the OPWDD or to levy a fine on the holder of an operating certificate, either party shall, upon demand and at least seven days prior to the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and identification of witnesses, provided, however, the provisions of this subdivision shall not be deemed to require the disclosure of information or material otherwise protected by law from disclosure, including information and material protected because of privilege or confidentiality. If, after such disclosure, a party determines to rely upon other witnesses or information, the party shall, as soon as practicable, supplement its disclosure by providing the names of such witnesses or the additional documents.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.6 Hearing procedures: denial of operating certificate renewal hearings

(a) Applicability.

In addition to section 602.2 of this Part, this section shall apply to hearings held when the office proposes to deny an operating certificate holder's application for renewal of an operating certificate. Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

(b) Hearing requests.

The denial of renewal shall be final, unless the operating certificate holder requests a hearing in writing within 30 days of service of notice of the proposed action. Such request shall be made to the commissioner, and shall include a copy of OPWDD's notice of proposed action. The request must also include a declaration of the issues alleged to be involved, and documentation of the provider's position as to each identified issue.

Except as provided for in Mental Hygiene Law, section 16.17(b), if the party makes a valid hearing request, the execution of any proposed action shall be stayed pending a final determination by the commissioner after a recommendation by a hearing officer.

(d) The operating certificate holder must serve on the division of the office which issued the statement of issues and the hearing officer an answer, signed by the holder, no later than three days before the initial hearing date.

(e) Burden of proof.

(f) When the office seeks the denial of renewal of an operating certificate previously granted by the OPWDD, either party shall, upon demand and at least seven days prior to the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and identification of witnesses; provided, however, the provisions of this subdivision shall not be deemed to require the disclosure of information or material otherwise protected by law from disclosure, including information and material protected because of privilege or confidentiality. If, after such disclosure, a party determines to rely upon other witnesses or information, the party shall, as soon as practicable, supplement its disclosure by providing the names of such witnesses or the additional documents.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.7 Hearing procedures: audit appeal hearing

(a) Applicability.

In addition to section 602.2 of this Part, this section shall apply to hearings held pursuant to any law or regulation giving a right to a hearing before OPWDD to appeal audit findings, except that this section shall not apply to audit hearings requested pursuant to section 681.14 or 690.7 of this Title. Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

(b) Hearing requests.

(1) The OPWDD's audit findings, as adjusted in accordance with the determination after administrative review, and as served on the provider, shall be deemed to be the notice of proposed action under section 602.2(a) of this Part.

(2) The audit findings shall be final, unless the provider requests a hearing in writing within 30 days of service of such findings. Such request shall be made to the commissioner.

(3) The request shall include a copy of the final audit report; a declaration of the audit findings being appealed and issues alleged to be involved; and documentation of the provider's position as to each identified issue.

(1) Only those audit findings having a fiscal impact of at least $1,000 may give rise to a hearable issue.

(2) Upon receipt of a request for a hearing, the commissioner shall forward a copy of the request to the division of the office which issued the audit findings provided for in paragraph (b)(1) of this section. Said division shall have 30 days to present written argument(s) to amend or deny any or all of the issues alleged to be involved by the party requesting the hearing. Thereafter the commissioner shall determine whether a hearable factual issue(s) is in dispute. If the commissioner determines that there is no hearable factual issue(s), he or she shall deny the request for a hearing and notify the provider of such denial. No administrative appeal shall be available from this determination.

(3) If the commissioner determines that there is a hearable factual issue(s), he or she shall issue to the parties a notice of hearing and a statement of issues.

(4) The commissioner shall consider those requests for amendments to the statement of issues which he or she receives at least seven days before prior to the initial hearing date.

(d) Burden of proof.

The provider shall present its case first. The burden of proof shall be on the provider to establish that an item, or items, contained in the final audit report, and determined by the commissioner as a hearable issue(s) are incorrect.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.8 Hearing procedures: temporary suspension or limitation of an operating certificate

(a) Applicability.

In addition to section 602.2 of this Part, this section shall apply to hearings held pursuant to Mental Hygiene Law, section 16.17(b) which provides that the Office for People With Developmental Disabilities may suspend or limit an operating certificate without notice and an opportunity to be heard following a finding that the health or safety of a person receiving services is in imminent danger. The provider may appeal such an action. Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling.

(b) Hearing requests.

The decision of the office to temporarily suspend or limit an operating certificate shall be valid for up to 60 days or, if a notice is served upon the provider within said 60 days notifying said provider of the intention of the office to revoke, suspend or limit the operating certificate pursuant to Mental Hygiene Law, section 16.17(a), until the operating certificate is so suspended, limited or revoked or the outcome of any hearing to appeal such decision is reached pursuant to Mental Hygiene Law, section 16.17(a) and section 602.5 of this Part. The decision to temporarily suspend or limit an operating certificate may be appealed by the provider. Such appeal and request for hearing shall be in writing and must be made within 10 days of the temporary suspension or limitation of the operating certificate.

The hearing shall commence within 10 days of receipt of the hearing request. No request for an adjournment shall be granted without the concurrence of the provider and the division of the office which made the decision to temporarily suspend or limit the operating certificate and the hearing officer.

(d) Service of papers.

The notice of hearing and statement of issues shall be served upon the provider not less than 24 hours prior to the commencement of a hearing requested under this Part. The provider may serve an answer upon the division of the office which issued the statement of issues and the hearing officer at any time prior to the commencement of a hearing conducted pursuant to this Part.

(e) Scope of hearing.

The hearing shall be limited to those violations of Federal and State law and regulation that gave rise to the temporary suspension or limitation of the operating certificate.

(f) Procedure. The OPWDD shall present its case first.

(g) Recommendation and decision. The hearing officer's recommendation and the commissioner's decision shall be made upon consideration of the record as a whole. The decision of OPWDD to temporarily limit or suspend the provider's operating certificate shall be sustained if the OPWDD presents evidence demonstrating that, at the time the temporary suspension was imposed, there was reasonable cause to believe that the health or safety of a person receiving services was in imminent danger. The commissioner shall review and render a final determination concerning the temporary suspension or limitation of the operating certificate within 10 days of receipt of the record and the hearing officer's report and recommended decision.

(h) At any time subsequent to the suspension or limitation of any operating certificate pursuant to this subdivision where said suspension or limitation is the result of correctable physical plant, staffing or program deficiencies, the facility may request the office to reinspect the facility to redetermine whether a specific condition or practice continues to exist. After the receipt of such a request, the office shall reinspect the facility within 10 days and in the event that the previously found condition or practice has not been eliminated, the commissioner shall not thereafter be required to reinspect the facility during the emergency period of suspension or limitation. The findings of the office upon such reinspection may be introduced by the office at any hearing requested by the provider pursuant to this Part, and may be the subject of evidence introduced by the provider.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.9 Second level rate and fee appeal procedure

(a) Applicability.

(1) Where a conflict exists between this section and section 602.2 of this Part, the provisions of this section shall be controlling. This Part shall apply to and be controlling in all second level appeals of the following decisions pursuant to the Mental Hygiene Law and/or regulations issued pursuant thereto:

(i) Decisions on first level appeals to rates for intermediate care facilities for persons with developmental disabilities pursuant to section 681.2(d) of this Title.

(ii) Decisions on first level appeals to rates for specialty hospitals pursuant to section 680.12(e) of this Title.

(iii) Decisions on first level appeals to fees and rent appeals for community residences pursuant to section 686.13 of this Title.

(2) At the conclusion of the first level appeal process, the OPWDD shall notify the provider of any proposed revised rate, fee, or rent, or denial of same. The OPWDD shall inform the provider that, for any given rate or fee period, it may either accept the proposed revised rate, fee or rent or request a second level appeal in the event that the proposed revised rate, fee or rent fails to grant some or all of the relief requested in the first level appeal. In the event that a second level appeal is requested and the commissioner determines that no second level appeal issues are presented by a provider's request for a second level appeal, the proposed revised rate, fee or rent shall become final and shall be certified by the commissioner and forwarded to the State Division of the Budget for approval and subsequent payment. In the event that a second level appeal is requested and the commissioner determines that second level appeal issues are presented by a provider's request for a second level appeal, the proposed revised rate, fee or rent for the rate or fee period being appealed shall be without further force or effect and shall not be considered by the hearing officer or the commissioner in determining the second level appeal.

(3) If the OPWDD approves the revision to any rate, fee or rent at the conclusion of the first or second level of appeal, and if the State Division of the Budget fails to approve such revision, the provider shall have no further right to administrative review pursuant to this section.

(b) Request for second level appeal.

(1) The OPWDD's denial of the first level appeal of any or all of the relief requested in the appeals provided for in paragraph (a)(2) of this section shall be final, unless the provider requests a second level appeal to the commissioner in writing within 30 days of service of notification of denial or proposed revised rate.

(2) The request shall include: a copy of the office's notice to the provider on the first level appeal; a statement of the factual issues involved; a detailed statement and documentation of the provider's position as to each identified issue; the name and a current address of the person to be notified or communicated with for service of notice and other papers and, if the provider is represented by an attorney, the name and address of that attorney.

(1) Unless otherwise agreed to by all parties to the proceeding, the issues to be decided in the second level appeal shall be limited to those grounds of appeal and those specific items of expense which were the subject to the first level appeal. Any request for the inclusion of new material shall be denial unless the commissioner finds, after notice to the division of the office responsible for the first level appeal decision, and after giving that division 30 days to comment, compelling reasons for its omission during the first level appeal.

(2) Upon receipt of a request for a second level appeal, the commissioner shall review the request and identify those issues which have been appealed within the limits imposed by paragraph (b)(1) of this section, and those which raise issues of fact. A copy of the request for an appeal and the commissioner's preliminary identification of the issues shall be sent to the parties.

(3) The appeal shall be considered withdrawn by the provider 90 days after the provider's receipt of the commissioner's preliminary identification of the issues, unless the provider takes one of the following three actions:

(i) submits for the commissioner's approval a proposed settlement, as agreed to between the provider and the division of the office which decided the first level appeal; or

(ii) advises the commissioner that it intends to proceed with the appeal; or

(iii) advises the commissioner that the provider and the division of the office which decided the first level appeal have agreed to an extension of time. In that event, the appeal shall be considered withdrawn by the provider 90 days after the commissioner has been advised of the agreement, unless the provider again takes one of the three actions set forth in this paragraph.

(4) If the provider and the division of the office which decided the first level appeal agree to a proposed settlement of the identified issues for some, but not all of the rate or fee periods for which a second level appeal has been requested, such a settlement shall be submitted to the commissioner for approval, and the provider may proceed on the remaining rate or fee periods according to the procedures set forth in subparagraph (3)(ii) or (iii) of this subdivision. A rate or fee revised by OPWDD pursuant to an appeal shall not be considered final unless and until approved by the Division of the Budget.

(5) Upon notice that the provider wishes to proceed with the appeal, the commissioner shall send a proposed statement of issues to all parties. The parties shall have 30 days to reply and raise objections to the commissioner's inclusion, exclusion or statement of any issue.

(6) The commissioner shall, after the conclusion of the time provided for in paragraph (5) of this subdivision, determine whether a factual appealable issue is in dispute. If further information is needed to make the determination of whether there is an appealable factual issue, the commissioner shall direct the parties to provide the necessary information.

(7) If the commissioner determines there is no factual appealable issue, he or she shall deny the request for a second level appeal and notify the provider of such denial. There shall be no further administrative review of this determination.

(8) If the commissioner determines that there are factual appealable issue(s), the commissioner shall issue to the parties a notice of the second level appeal and a statement of the issue(s) to be decided. The notice of the second level appeal shall include a statement of the legal authority and jurisdiction under which the proceeding is to be held and a reference to the particular sections of the statutes and regulations at issue, if any. The parties shall also be advised of the name and address of the hearing officer appointed to hear the appeal.

(d) Burden of proof.

(1) In second level ICF/DD, specialty hospital, and community residence rate and fee appeals, the burden of proof shall be on the facility to demonstrate that the rate or fee requested in the second level appeal is necessary to meet the costs which must be incurred by an efficiently and economically operated facility of the same class of operating certificate. A facility is efficiently and economically operated when the funds requested are necessary:

(i) to operate the facility in compliance with all applicable State and Federal laws and regulations;

(ii) to provide necessary services in conformance with the total number of persons actually receiving services plus justified vacancies, up to the number of persons designated by the facility's operating certificate; and

(iii) when compliance with State and Federal laws and regulations by the provision of necessary services cannot be achieved in a more economic fashion.

(2) In second level rent appeals, the burden of proof shall be on the community residence to present sufficient evidence to demonstrate that an individual who has been admitted to the community residence is not able to pay the rent charged him or her.

(e) Development of written record.

(1) The provider and the OPWDD shall each participate in developing a written record consisting of relevant documents and statements for the hearing officer.

(2) Within 30 days after receiving the statement of issues, the provider shall submit the following to the hearing officer and a copy to the OPWDD:

(i) The documents supporting the appeal tabbed and organized chronologically and accompanied by an indexed list identifying each document. The provider shall include only those documents which are relevant to the issues in the case.

(ii) A written brief of the provider's argument concerning why the rate or fee requested is necessary to meet the costs which must be incurred by an efficiently and economically operated facility of the same class of operating certificate or why an individual is not able to pay the rent charged him or her.

(3) New evidence. When a provider wishes to submit new or additional facts expert opinions for review which were not part of the first level appeal, that provider must make a written request to the hearing officer. Such request shall include, in detail, the nature of the evidence and the reasons the evidence was not submitted for or considered at the first level appeal. A copy of the request shall be served on all other parties to the proceeding. A provider may introduce such evidence only after the hearing officer, in his or her discretion, grants the request after giving other parties 10 days to file written objections.

(4) Within 30 days after receiving the provider's submission under paragraph (2) of this subdivision, the OPWDD shall submit the following to the hearing officer and a copy to the provider:

(i) Any documents supporting the OPWDD's position, organized and indexed as indicated under paragraph (2) of this subdivision. The OPWDD shall avoid submitting duplicates of documents submitted by the provider.

(ii) A written brief responding to the provider's brief and stating the OPWDD's position.

(5) Reply briefs.

(i) Within 15 days after receiving the OPWDD's submission, the provider may submit a reply. The provider shall avoid repeating arguments already made.

(ii) Within 15 days after receiving the provider's reply brief, the OPWDD may submit a reply. The OPWDD shall avoid repeating arguments already made.

(6) All briefing shall end upon the expiration of the time limit provided for in subparagraph (4)(ii) of this subdivision unless, in the hearing officer's discretion, additional briefing is necessary to clarify any issues or material facts in order that the hearing officer may make a prompt and informed decision.

(7) The hearing officer may extend any of the time frames in this section.

(f) The hearing officer.

In addition to the authority vested in the hearing officer in section 602.2(h) of this Part, the hearing officer, at any time during the second level appeal, may remand all or part of the case back to the division of the office that decided the first level appeal.

(g) Stipulations and consent orders.

(1) The parties shall stipulate, to the fullest extent possible, to all issues which are relevant to the pending controversy. Included in matters required to be stipulated are all facts, all documents and papers or contents or aspects thereof, and all evidence which fairly should not be in dispute. Where the truth or authenticity of facts or evidence claimed to be relevant by one party is not disputed, an objection on the ground of materiality or relevance may be noted by any other party but is not to be regarded as just cause for refusal to stipulate. The requirement of stipulation applies under this section without regard to where the burden of proof may lie with respect to the controversies involved.

(2) At any time prior to the issuance of the commissioner's determination, the parties may enter into a stipulation for the resolution of any or all issues to which they had not previously stipulated.

(3) The commissioner may issue a consent order upon agreement or stipulation of the parties. A consent order shall have the same force and effect as the commissioner's determination issued after a second level appeal.

(h) Request for a hearing.

(1) The hearing officer will approve a request for an evidentiary hearing only if the hearing officer determines there is a need for expert testimony or other evidence which cannot or should not be presented in documentation, including the cross-examination of the author of any affidavit or other material attached to any party's submission(s) pursuant to subdivisions (c) and (e) of this section.

(2) If any party, believes an evidentiary hearing is appropriate, that party should specifically request one at the earliest possible time, setting forth the name of any proposed witness, his or her curriculum vitae, a synopsis of proposed testimony, including copies of any documents, pictures, etc., intended to be introduced and the reasons why such matters cannot or should not be presented in documentation.

(i) Hearing procedures.

(1) If an evidentiary hearing is granted by the hearing officer, the hearing officer shall issue a notice of hearing and statement of issues for the hearing in a format approved by the commissioner. In addition to the requirements of section 602.2(e) of this Part, such notice of hearing shall include a list of witnesses giving testimony.

(2) Notice of the hearing shall be served on the parties at least 10 days prior to the hearing date.

(3) Conduct of the evidentiary hearing and evidence. In addition to the requirements of section 602.2(k)(4) of this Part, the following shall apply:

(i) The party requesting the evidentiary hearing shall present its case first.

(ii) A party may introduce an exhibit at the hearing only after explaining to the satisfaction of the hearing officer why the exhibit was not submitted prior to the hearing.

(iii) The hearing officer may require any party to submit written statements of any witness(es) to the hearing officer and the opposing party at least 10 days prior to the hearing so that the hearing will be concerned with objections to the statement or parts thereof, cross-examination and rebuttal. The hearing officer may rule inadmissible any direct testimony not included in the written statements.

(j) The record before the hearing officer.

The record shall include: the provider's first level appeal request; the request for a second level appeal; the letter appointing the hearing officer; notice of the second level appeal; the statement of the issues; legal briefs, memoranda of law and supporting documentation; stipulations, if any; motions and requests submitted and rulings thereon; reports or transcripts of conferences, if made; if a hearing is held, the notice of hearing and statement of issues for the hearing, the transcript or recording of the testimony taken at the hearing and the exhibits; any written material which may have been submitted and filed in connection with the second level appeal; and any decision, determination, or order rendered.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 603 Public Access To Records Pursuant To The Freedom Of Information Law

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.1 Applicability

This Part relates to public access to records of the Office for People With Developmental Disabilities (hereinafter referred to as OPWDD) and its operated and/or certified facilities.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.2 Background and intent

(a) Recent legislation has determined that the people have the right to know the process of governmental decisionmaking and to review the records and statistics leading to those decisions.

(b) The purpose of this Part is to set forth the rules and procedures governing the public's access to records of OPWDD (see section 603.13[d] of this Part).

(c) Nothing in this Part shall permit disclosure if such disclosure is prohibited under article 6-A of the Public Officers Law, known as the Personal Privacy Protection Law, or section 33.13 of the Mental Hygiene Law.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.3 Statutory authority

(a) Section 13.09 of the Mental Hygiene Law grants the commissioner the authority to adopt rules and regulations necessary and proper to implement any matter under his or her jurisdiction.

(b) This Part is subject to the provisions of article 6 of the Public Officers Law, known as the Freedom of Information Law.

(c) The rules of the State Committee on Open Government, promulgated as 21 NYCRR Part 1401, require the commissioner to publish regulations governing the public's access to OPWDD records.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.4 Records access officer and records access appeals officer

(a) The records access officer (see section 603.13[f] of this Part) shall mean:

(1) With respect to records maintained by the central office of OPWDD in Albany, the public access officer, whose business address is: Office for People With Developmental Disabilities, 44 Holland Avenue, Albany, NY 12229.

(2) With respect to records regarding OPWDD facilities or services, the chief administrative officer; or the Director of the Developmental Disabilities Services Office (DDSO); or their designees, whose business addresses are:

Bernard Fineson DDSO

P.O. Box 280507

Queens Village, NY 11428

Brooklyn DDSO

888 Fountain Avenue

Brooklyn, NY 11208

Broome DDSO

249 Glenwood Road

Binghamton, NY 13905

Capital District DDSO

Balltown and Consaul Roads

Schenectady, NY 12304

Central New York DDSO

Box 550

Rome, NY 13422

Finger Lakes DDSO

620 Westfall Road

Rochester, NY 14620

Hudson Valley DDSO

P.O. Box 470

Thiells, NY 10984

Institute for Basic Research in Developmental Disabilities

1050 Forest Hill Road

Staten Island, NY 10314

Long Island DDSO

45 Mall Drive

Commack, NY 11725

Metro New York DDSO

75 Morton Street

New York, NY 10014

Staten Island DDSO

1150 Forest Hill Road

Staten Island, NY 10314

Sunmount DDSO

2445 State Route 30

Tupper Lake, NY 12986

Taconic DDSO

26 Center Circle

Wassaic, NY 12592

Valley Ridge Center for Intensive Treatment

276 Chiarino Drive

Norwich, NY 13815

Western New York DDSO

1200 East and West Road

West Seneca, NY 14224

(b) All requests to inspect or copy records subject to disclosure as provided by this Part are to be made to the appropriate records access officer.

(c) The records access officer shall provide assistance to a requester in identifying requested records and shall ensure that a current subject matter list (see section 603.13[h] of this Part) of records is maintained. Such list shall be updated at least semiannually.

(d) The records access appeals officer shall mean the Counsel of OPWDD, whose business address is: Counsel's Office, Office for People With Developmental Disabilities, 44 Holland Avenue, Albany, NY 12229.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.5 Times and places for inspecting or copying records

Records shall be available for inspection and copying by the public at the locations designated by the appropriate records access officer on every day that such office is open for the transaction of administrative business, between the hours of 9 a.m. and 4 p.m.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.6 Procedures governing inspection and copying of records

(a) Requests shall be made in writing and shall reasonably describe the records to which access is sought.

(b) The records access officer shall, within five business days after receipt of a request:

(1) grant the request; or

(2) deny the request in writing. Such denial shall:

(i) explain the reason for the denial;

(ii) set forth the right of appeal to the records access appeals officer; and

(iii) provide the name, title, business address and telephone number of the records access appeals officer; or

(3) furnish a written acknowledgment of receipt of the request which includes a statement of the approximate date when the request will be granted or denied.

(c) If the records access officer fails to respond to a request within five business days of receipt of a request as required in paragraph (b)(3) of this section, such failure shall be deemed a denial of access by OPWDD, and may be appealed pursuant to section 603.9 of this Part.

(d) If the records access officer acknowledges the request, but fails to grant access by the approximate date provided in the acknowledgment, the request may be construed as denied, and may be appealed pursuant to section 603.9 of this Part. Such appeal shall not be initiated until five business days after the approximate date provided in the acknowledgment.

(e) If access is approved, the records access officer shall so notify the requester and cause a search to be made for the record requested.

(f) If the record cannot be found after diligent search, the records access officer shall so notify the requester.

(g) As authorized by the Freedom of Information Law, the records access officer may cause identifying details, which if not expunged would constitute an unwarranted invasion of privacy, to be deleted from the record before inspection or copying.

(h) The original or file copies of a record shall not be released.

(i) Copies of a record may be made by any means which will not damage the record.

(j) If requested, the records access officer shall:

(1) upon payment of the appropriate fees, provide a copy of the record;

(2) certify (see section 603.13[a] of this Part) that the copy is a true copy.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.7 Fees

(a) Except where fees are established by law, rule or regulation, no fee shall be charged for:

(1) inspection of a record;

(2) record searches; or

(3) certification (see section 603.13[a] of this Part) pursuant to this Part.

(b) The fee for photocopying records available pursuant to this Part shall be 25 cents per single-sided page.

(d) Payment shall be made in the form of a check, bank draft or money order payable to the "New York State Office for People With Developmental Disabilities" or, if personally delivered, may be made in cash for which a receipt shall be given.

(e) A fee may be waived or reduced at the discretion of the records access officer.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.8 Grounds for denial of access to records

(a) A request for a record may be denied for any of the following reasons:

(1) The record is exempted from disclosure by other State or Federal statute. Examples of statutes which limit public access to records are:

(i) section 33.13 of the Mental Hygiene Law, which restricts access to information about individuals (see section 603.13[b] of this Part), including identification of individuals and their clinical records;

(ii) section 3101 (d) of the Civil Practice Law and Rules, which restricts access to records prepared solely for purposes of litigation; and

(iii) sections 1306 and 1395bb of title 42 of the United States Code, which restrict public access to hospital survey reports prepared by the Joint Commission on the Accreditation of Hospitals (JCAH).

(2) Disclosure of the record could impair present or imminent contract awards or collective bargaining negotiations.

(3) The record contains trade secrets or is maintained for the regulation of commercial enterprise, and the disclosure of such record could cause substantial injury to the competitive position of the subject enterprise.

(4) The record was complied for law enforcement purposes and disclosure could:

(i) interfere with law enforcement investigations or judicial proceedings;

(ii) deprive a person of his or her right to a fair trial or impartial adjudication;

(iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or

(iv) reveal nonroutine criminal investigative techniques or procedures.

(5) Disclosure of the record could endanger the life or safety of any person. If the records access officer has a concern that such might be the case, he or she may require the requester to identify himself or herself and state the reason why the record is being requested.

(6) The record is interagency or intra-agency materials, but not:

(i) a statistical tabulation (see section 603.13[g] of this Part) or factual tabulation (see section 603.13[c]) or data;

(ii) instructions to staff which affect the public; or

(iii) final agency policy or determination.

(7) Disclosure of the record would jeopardize an agency's capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures.

(8) The record consists of examination questions or answers which are requested prior to final administration of such questions.

(9) The record of the type described by the requester does not exist.

(b) Nothing in this Part shall require disclosure of the name or home address of the following persons:

(1) applicants for appointment to public employment; or

(2) beneficiaries of a public employees' retirement system.

(c) Nothing in this Part shall require disclosure of the home address of the following persons, unless such disclosure is to recognized employee organizations pursuant to section 89.7 of the Public Officers Law:

(1) present or former officers or employees; or

(2) retirees of a public employees' retirement system.

(d) A request for a record must be denied if:

(1) Disclosure is prohibited under article 6-A of the Public Officers Law, known as the Personal Privacy Protection Law.

(2) Disclosure would constitute an unwarranted invasion of personal privacy.

(i) An invasion of personal privacy includes, but is not limited to, any of the following:

(a) disclosure of employment, medical or credit histories or personal references of applicants for employment and current employees;

(b) disclosure of the medical or personal records of an individual receiving services or applicant for services of an OPWDD-operated and/or certified facility;

(c) sale or release of lists of names and addresses if such lists would be used for commercial or fundraising purposes. If the request is for a list of names and addresses, the records access officer may ask the requester to identify himself or herself and state the purpose of the request;

(d) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject and when such information is not relevant to the work of OPWDD; or

(e) disclosure of information of a personal nature reported in confidence to OPWDD and not relevant to the ordinary work of OPWDD.

(ii) Disclosure shall not be construed to constitute an unwarranted invasion of personal privacy:

(a) when identifying details are deleted; or

(b) when the person or persons to whom the record pertains consent to disclosure in writing; or

(c) when, upon presenting reasonable proof of identity, a person seeks access to records pertaining to himself or herself under the provisions of the Personal Privacy Protection Law and Part 604 of this Title.

(iii) Notwithstanding the above, access to an individual's clinical records within the scope of section 33.13 of the Mental Hygiene Law shall be exclusively governed by such section of the Mental Hygiene Law.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.9 Appeals of denial of access to records

(a) Any person who has been denied access to records by the records access officer may, within 30 days of receipt of the denial, appeal such denial to the records access appeals officer, who is the Counsel of the Office for People With Developmental Disabilities and whose business address is: Counsel's Office, Office for People With Developmental Disabilities, 44 Holland Avenue, Albany, NY 12229.

(b) The written appeal shall identify:

(1) the date of the request and the location to which it was made;

(2) the record to which the requester was denied access; and

(3) the name and return address of the requester.

(c) The records access appeals officer shall, within 10 business days of the receipt of a written appeal, review the matter and affirm, modify or reverse the denial.

(d) If the records access appeals officer determines that the denial of access was erroneous, he or she shall instruct the records access officer to allow prompt inspection or copying of the record as requested.

(e) If the records access appeals officer affirms or modifies the denial, he or she shall communicate the reasons in writing by either first class mail or certified mail, return receipt requested, to the person making the appeal and inform such person of the right of judicial appeal pursuant to article 78 of the Civil Practice Law and Rules.

(f) The records access appeals officer shall, upon receipt, forward to the Committee on Open Government a copy of any appeal made pursuant to this Part.

(g) The records access appeals officer shall forward to the Committee on Open Government the determination of any appeal and the reasons therefor at the time of such determination.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.10 Payroll information

(a) Requests for payroll information (name, business address, title and salary of officers and employees) about officers and employees at the central office of OPWDD shall be made in writing, on the form prescribed by the State Comptroller, to the business officer at 44 Holland Avenue, Albany, NY 12229.

(b) Requests for payroll information (name, business address, title and salary of officers and employees) about officers and employees employed at OPWDD facilities shall be made in writing, on the form prescribed by the State Comptroller, to the business officer of the facility at which such person is employed. The addresses of such business officers are set forth in section 603.4(a)(2) of this Part.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.11 Public notice

OPWDD and each facility of OPWDD shall publicize, by posting in a conspicuous location:

(a) the locations where records shall be made available for inspection or copying at that facility;

(b) the name, title, business address and business telephone of the designated records access officer at that facility; and

(c) the right to appeal by any person denied access to a record, and the name and business address of the records access appeals officer.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.12 Severability

If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons or circumstances.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 603.13 Glossary

(a) Certification (certify). A statement that the copy is a true copy, as attested to, and documented by, the signature of the records access officer.

(b) Factual tabulation. A collection of statements of objective information logically arranged and reflecting objective reality, actual existence or actual occurrence. Opinions, policy options and recommendations do not constitute factual tabulations.

(c) Person/individual. An individual meeting appropriate admission criteria and receiving residential or nonresidential services at a program operated and/or certified by OPWDD. For the purposes of this regulation, this shall include persons who have applied, or are being screened, for any of the above services.

(d) Record. Any information kept, held, filed, produced or reproduced by, with or for OPWDD in any physical form whatsoever, including but not limited to: reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.

(e) Records access appeals officer. That individual, or designee, who determines whether there is a legal basis for denying a request to access, amend or copy records.

(f) Records access officer. That individual who receives and processes requests to access, amend or copy records.

(g) Statistical tabulation. A record which is a collection or orderly presentation of numerical data logically arranged in columns, rows, or graphic representation. Opinions, policy options and recommendations do not constitute statistical tabulations.

(h) Subject matter list. A reasonably detailed current list, by subject matter, of all records maintained by OPWDD, regardless of whether such records are available to the public pursuant to section 87 (2) of the Public Officers Law.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 604 Access to or Correction/Amendment of Records of the Office for People With Developmental Disabilities Subject to the Personal Privacy Protection Law

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.1 Background and intent

(a) Pursuant to chapter 652 of the Laws of 1983, the Office for People With Developmental Disabilities (hereinafter referred to as OPWDD), intends that this Part and its attendant procedures shall have as its ultimate goal the furtherance of the fundamental constitutional right to personal privacy.

(b) OPWDD acknowledges that it maintains data banks and information systems which contain information of the most personal and potentially sensitive nature regarding the persons to whom it provides services.

(c) The existence of such data banks and information systems and the increasingly sophisticated technology that makes them possible imposes upon OPWDD the obligation to establish appropriate procedures to ensure that personal rights to privacy are not abridged.

(d) Thus, the specific purpose of this Part is to set forth the methods and procedures governing the availability, location and nature of those records maintained by OPWDD subject to the provisions of article 6-A of the Public Officers Law, known as the Personal Privacy Protection Law, and the rules of the Committee on Open Government.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.2 Statutory authority

(a) Section 13.09 of the Mental Hygiene Law, grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under his or her jurisdiction.

(b) Section 94 of article 6-A of the Public Officers Law, requires the Commissioner of OPWDD to publish regulations governing the access to records which will ensure that the personal privacy rights of persons on whom records are maintained are sufficiently protected.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.3 Records access officer and records access appeals officer

(a) The records access officer shall be the individual(s) designated by section 603.4(a) of this Title.

(b) All requests to inspect, amend and/or copy records (see section 604.12 of this Part) subject to disclosure as provided by this Part are to be made to the appropriate records access officer (see section 604.12 of this Part).

(c) The records access appeals officer (see section 604.12 of this Part) shall be responsible for processing any appeals resulting from the provisions of this Part.

(d) The records access appeals officer shall mean the Counsel of OPWDD whose business address is: Counsel's Office, Office for People With Developmental Disabilities, 44 Holland Avenue, Albany, NY 12229.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.4 Times and places for inspecting records and the verification of identity

(a) Records may be inspected at locations designated by the appropriate records access officer, whose title and business address are as set forth in section 604.3 of this Part.

(b) Records shall be available for inspection and copying by data subjects/authorized representatives (see section 604.12 of this Part) on every day that the above office or facility is open for the transaction of administrative business between the hours of 9 a.m. and 4 p.m.

(1) Prior to being given access to personal information (see section 604.12 of this Part), an individual may be required to provide reasonable verification of his or her identity.

(2) In the case of an individual who seeks access or amendment in person, verification of identity will normally be made from those documents that an individual is likely to have readily available, such as an employee identification card, driver's license, or comparable documents.

(3) When access or amendment is requested or processed by mail, verification of identity may be obtained by requiring the individual to provide certain minimum identifying data, such as date of birth and some item of information in the record that only the concerned individual would likely know. If the sensitivity of the information in the record warrants, a signed and notarized statement of identity may be required.

(d) No verification of identity, however, shall be required of an individual seeking access to records which are otherwise available to any member of the public under the Freedom of Information Law.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.5 Procedures governing inspection and copying of records

(a) Requests shall be made in writing and shall reasonably describe the records to which access is sought.

(b) If the request is made by an authorized representative it must, in addition, be accompanied by an authorization which specifically describes:

(1) the personal information which the data subject wants disclosed;

(2) the person or entity to whom disclosure is authorized; and

(3) the situation specific use which will be made of such information by the person or entity receiving it.

(1) Make the requested record available.

(2) Deny the request in writing. Such denial shall:

(i) explain the reason for the denial;

(ii) set forth the right of appeal to the records access appeals officer; and

(iii) provide the name, title, business address and telephone number of the records access appeals officer.

(3) Furnish written acknowledgment of the request which:

(i) provides the approximate date when the request will be granted or denied (such date shall not exceed 30 days from the date of acknowledgment);

(ii) advises the requester of the provisions of subdivision (d) of this section;

(iii) sets forth the right of appeal to the records access appeals officer; and

(iv) provides the name, title, business address and telephone number of the records access appeals officer.

(d) Failure to grant or deny access to records within five business days of the receipt of a request or within 30 days of an acknowledgment of a request may be construed as a denial subject to appeal. Such appeal shall not be initiated except upon expiration of:

(1) five business days for unacknowledged requests;

(2) the specified date, if one is provided in acknowledged requests; or

(3) thirty days for acknowledged requests when no date is provided.

(e) If access is approved, the records access officer shall so notify the requester and cause a search to be made for the record requested.

(f) If the record cannot be found after diligent search, the records access officer shall so notify the requester.

(g) The original or file copies will not be released.

(h) If requested, the records access officer shall:

(1) Upon payment of the appropriate fees, provide a copy of the record.

(2) Certify (see section 604.12 of this Part) that the copy is a true copy.

(3) Upon satisfactory verification of identity, process the request by mail.

(i) Copies of a record may be made by any available means which will not damage the record.

(j) The locations where records are available for inspection or copying pursuant to this Part shall be posted in conspicuous places.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.6 Fees

(a) Except where fees are established by law, rule or regulation, no fee shall be charged for:

(1) inspection of a record;

(2) record searches;

(3) certification (see section 604.12 of this Part) pursuant to this Part; and

(4) amendment or correction of a record found to be in error.

(b) Fees for photocopies or data printouts of records available pursuant to this Part shall be 25 cents per single-sided page or $60 for transfer of a computer file to a requester's computer tape.

(d) Payment shall be made in the form of a check, bank draft, or money order payable to the New York State Office for People With Developmental Disabilities; or, if personally delivered may be made in cash for which a receipt shall be given.

(e) A fee may be waived or reduced at the discretion of the records access officer.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.7 Grounds for denial of access to records

Reasons for denial of a data subject's access to records pertaining to him or herself include but are not limited to:

(a) Access to the record is restricted by other State or Federal statute. For example, access to client clinical records within the scope of section 33.13 of the Mental Hygiene Law shall be exclusively governed by such section of the Mental Hygiene Law.

(b) The record is a client record concerning mental disability or a medical record to which access is not otherwise required by law.

(1) interfere with law enforcement investigations or judicial proceedings;

(2) deprive a person of his or her right to a fair trial or impartial adjudication;

(3) identify a confidential source or disclose confidential information relating to a criminal investigation; or

(4) reveal nonroutine criminal investigative techniques or procedures.

(d) The record is an attorney's work product or material prepared for litigation before judicial, quasi-judicial or administrative tribunals.

(e) The record cannot be retrieved by use of the data subject's description thereof, or by the use of the name or other identifier of the data subject, without extraordinary search methods being employed.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.8 Appeals of denial of access to records

(a) Any person who has been denied access to records by the records access officer may, within 30 business days of receipt of the denial, appeal such denial to the records access appeals officer.

(b) The time for deciding on an appeal by the records access appeals officer shall commence upon receipt of the written appeal, which shall identify:

(1) the date of the request and the location to which it was made;

(2) the record to which the requester was denied access; and

(3) the name and return address of the requester.

(c) the records access appeals officer shall, within seven business days of the receipt of a written appeal, review the matter and affirm, modify or reverse the denial.

(f) The records access appeals officer shall, upon receipt, forward to the Committee on Open Government, a copy of any appeal made pursuant to this Part.

(g) The records access appeals officer shall forward to the Committee on Open Government, the determination of any appeal and the reasons therefor at the time of such determination.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.9 Procedures governing the correction or amendment of records

(a) Requests for correction or amendment of records shall:

(1) be made in writing; and

(2) reasonably describe the record, the amendment or correction desired and the justification therefor.

(b) The records access officer shall within 30 business days after receipt of a request:

(1) Make the requested correction or amendment in whole or part and advise the individual that upon request, parties to which such data has been disclosed will be advised if such data was disclosed in accordance with section 94.3(c) of the Public Officers Law.

(2) Deny the request in writing. Such denial should:

(i) explain the reason for the denial;

(ii) set forth the right of appeal to the records access appeals officer; and

(iii) provide the name, title, business address and telephone number of the records access appeals officer.

(c) Failure to respond to a request for amendment or correction of a record within 30 business days of receipt of such a request may be construed as a denial subject to appeal. Such appeal shall not be initiated prior to the expiration of the 30-day period.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.10 Procedures governing appeals of denial of correction or amendment of records

(a) Any person who has been denied correction or amendment of records by the records access officer may, within 30 business days of receipt of the denial, appeal such denial to the records access appeals officer.

(b) The time for deciding on an appeal by the records access appeals officer shall commence upon receipt of the written appeal, which shall identify:

(1) the date of the request and the location to which it was made;

(2) the record to which the requester was denied correction or amendment and the requester's justification for correction; and

(3) the name and return address of the requester.

(c) The records access appeals officer shall, within 30 business days of the receipt of a written appeal, review the matter and affirm, modify or reverse the denial.

(d) If the records access appeals officer determines that the denial was erroneous, he or she shall instruct the records access officer to make the correction or amendment of the record as requested and notify appropriate parties, if requested, by the requester.

(f) In addition, the records access appeals officer will notify the requester of his or her right to file with OPWDD a statement of reasons for disagreement with its determination. OPWDD will note any portions of the record which are disputed and attach the requester's statement as part of the record. Upon an individual's request, such statement will be provided to parties to which such data has been disclosed in accordance with section 94.3(c) of the Public Officers Law, together, if appropriate, with a concise statement of OPWDD's reasons for not making the requested amendment.

(g) The records access appeals officer shall, upon receipt, forward to the Committee on Open Government, a copy of any appeal made pursuant to this Part.

(h) The records access appeals officer shall forward to the Committee on Open Government, the determination of any appeal and the reasons therefor at the time of such determination.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.11 Severability

(a) If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 604.12 Glossary

(a) Authorized representative. A person or entity seeking access to records pertaining to a data subject pursuant to a written request by, or the voluntary written consent of, that data subject.

(b) Certification (certify). A statement that the copy is a true copy as attested to, and documented by, the signature of the records access officer.

(d) Personal information. Any data concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject.

(e) Records access officer. The records access officer or his or her designee shall be the person from whom records may be obtained as listed in section 604.3 of this Part.

(f) Records access appeals officer. The Counsel for the Office for People With Developmental Disabilities.

(g) Record. Any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject. The term record shall not include personal information not used to make a determination about a data subject such as:

(1) a telephone book or directory;

(2) a card catalog, book or other resource material in any library;

(3) a compilation of information containing names and addresses used exclusively for mailing agency information;

(4) personal information required by law to be maintained, and required by law to be used, only for statistical research or reporting purposes;

(5) correspondence files; and

(6) information requested by OPWDD which is necessary to answer unsolicited requests by the data subject for information.

(h) System of records. Any group of records under the actual or constructive control of OPWDD pertaining to one or more data subjects from which personal information is retrievable by use of the name or other identifier of a data subject.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 605 Operational Procedures Governing Implementation of the Youth Opportunity Program in the Office for People With Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 605.1 Background and intent

(a) The Office for People With Developmental Disabilities' (OPWDD) (see glossary) Youth Opportunity Program (YOP) is a part-time work experience and career oriented training program for secondary school youth who meet the definition of economically disadvantaged as stated in Higher Education Opportunity Program (HEOP) as described in Title 9 NYCRR Subpart 27-1.1(b)(1), Table II for applicants entering the YOP program between July 1, 1993 and June 30, 1994, and Table III for those applicants entering the program on or after July 1, 1994. The primary goal is to motivate youngsters at risk of dropping out to remain in school until they graduate. In addition, the program encourages students to pursue post-secondary education. The program is designed to provide the training and placement for students, who will gain work experience with persons with developmental disabilities. In some instances, due to the partnership between OPWDD and the Office of Mental Health (OMH) (see glossary), students will gain work experience with persons with mental illness.

(b) YOP also seeks to expose students to occupations within the health and human service fields, particularly in direct care and clinical areas. Most of these occupations are classified as "Occupations in Need". This designation means that these are critical occupations that OPWDD has currently, and may have difficulty filling in the future. These goals require a continuous commitment to provide work experiences and counseling to the youths in the program.

(1) serve disadvantaged youth at high risk of school dropout;

(2) encourage high school completion;

(3) encourage post high school education;

(4) provide students with a supervised work experience;

(5) initiate and nurture interest in providing services to persons with developmental disabilities;

(6) assist in the transition to regular, full-time employment; and

(7) promote personal growth.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 605.2 Statutory authority

(a) Subdivision (c) of section 4, chapter 174 of the Laws of 1990, requires that the commissioner of OPWDD promulgate regulations to govern the process by which the facilities of OPWDD shall select program student interns and define overall program implementation for the Youth Opportunity Program.

(b) Sections 13.01 and 13.07 of the New York State Mental Hygiene Law authorize the OPWDD to develop an effective, integrated, comprehensive system for the delivery of services to people with developmental disabilities and to create financing procedures and mechanisms to support such a system of services.

(c) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under his or her jurisdiction.

(d) Articles 16.00 and 16.01 set forth provisions enabling the commissioner of the OPWDD to regulate and assure the consistently high quality of services provided within the State to its citizens with developmental disabilities. The commissioner may adopt and promulgate any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by this article.

(e) Section 16.11 of the Mental Hygiene Law authorizes the commissioner or an authorized representative to conduct investigations and inspections, and permit review of the facility and all of its books and records.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 605.4 Program activities and administrative requirements

(a) Each Developmental Disabilities Service Office (DDSO) (see glossary) that participates in the YOP is required to offer opportunities and assistance to student interns that will be entering the labor force. On-the-job training is also an integral part of the student's experience. Required topics and activities for the classes and program activities are as follows:

(1) offer basic life knowledge and skills courses;

(2) career exploration;

(3) on-the-job training;

(4) career orientation in health and human services;

(5) employment skills courses; and

(6) career assessment.

(b) Optional activities may also be provided by the program. However, program supervisors are expected to arrange educational and career activities that are beneficial to all of the student interns in the program. Program supervisors are required to develop and submit a plan for these activities to the YOP program director's office in the OPWDD central office in January and June of each year.

(1) A maximum participation of 1,200 hours per year by each YOP student intern in activities including work, training, and counseling.

(2) The wages paid to YOP student interns are equal to State minimum wage for all time engaged in activities.

(3) Each YOP student intern is limited to a maximum participation of 20 hours/week in the program during school year. A maximum participation of 32 hours/week is allowed during school vacation periods.

(4) A YOP student intern wages are not to be considered in the determination of need process in the following public assistance programs these exemptions continue as long as Federal financial participation is available):

(i) AFDC;

(ii) home relief;

(iii) veteran's programs.

(d) Each year, by October 31st, the YOP program shall submit the annual evaluation report to the Governor and Legislature. The report shall contain the following:

(1) program objectives;

(2) program outcomes;

(3) relevant data on the student interns that continue their education or become employed;

(4) description of the training and activities courses being offered; and

(5) program methodology.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 605.5 Eligibility and administrative oversite for program sites

(a) The DDSO's (Developmental Disabilities Service Office) or local administrative sites shall be recruited based on their willingness to participate in the program. This means that the DDSO director is interested in making an investment of staff time and physical space in exchange for the benefits received from the YOP student interns. In addition, participating DDSO's shall actively promote a spirit of team work among its regular employees and the YOP program student interns. Team work means a close, cooperative and honest working relationship between the YOP student interns, employees and the persons who are receiving services.

(b) DDSO's become participants in the Youth Opportunity Program by sending a letter of interest to the program director of the YOP program. The selection of a participating DDSO shall be made based on the willingness to participate, as well as the needs of the local community. The program director of the YOP program shall coordinate the implementation of the YOP at each DDSO and the specific job-sites.

(c) The DDSO program supervisor shall be responsible for coordinating the program activities within its specific service area (including those DDSOs' participating in the partnership with OMH), recruiting students, placing students in appropriate positions, offering training programs, and other program activities.

(d) The DDSO shall be responsible to the YOP program director's office which has the major responsibility for overall program services.

(e) Participating DDSO's shall have the following responsibilities:

(1) In accepting a Youth Opportunity Program, the DDSO shall be cognizant of the program's commitment to provide training and meaningful work experiences that will have value beyond the immediate job.

(2) The DDSO shall provide office/work space for the program administration. This office/work space must be appropriate for individual meetings and counseling sessions with the students. A meeting or conference room shall be available to the program supervisor for weekly group meetings and other training sessions.

(3) The DDSO director shall, in conjunction with the YOP director, designate a regular employee as the program manager. This person shall be available to provide guidance to the YOP program supervisor and will facilitate correspondence required by the YOP program director's office.

(f) The program supervisor shall be recruited, hired, and trained by the YOP program director in coordination with the program manager at the DDSO. The DDSO and the YOP program director's office may select program supervisors from within or outside of State service. Persons selected as program supervisors shall be individuals with knowledge and experience who have demonstrated a sensitivity to youth and a respect for the needs and interest of the targeted youth population.

(g) Each program supervisor is paid from YOP funds and shall be responsible for implementing the program on a daily basis. The program supervisor's responsibilities include working closely with the YOP program director's office, the staff, the student interns, community contacts, and the job-site supervisors to ensure that the program requirements are followed and that the student intern receive proper orientation and training. Program supervisor responsibilities include the following:

(1) Program supervisors shall maintain a list and description of all agencies within the community with which they have contact and from whom they receive referrals.

(2) Program supervisors shall be in continuous contact with community based agencies for the purposes of recruitment, as a referral source, for up-to-date funding, networking, sharing information, etc.

(3) Program supervisors shall maintain regular contact with school personnel including, but not limited to, the appropriate guidance staff or teachers. At least one contact shall occur every three months and all contacts shall be documented. Additionally, program supervisors shall develop the necessary mechanism by which they periodically review attendance reports from the school.

(4) Program supervisors shall provide all YOP student interns with an orientation to the program and the specific job-site before job placement. It is the responsibility of the program supervisor to ensure that training is completed by all YOP student interns.

(5) Program supervisors shall make certain that YOP student interns comply with all program, job-site, and agency regulations. Disciplinary actions taken against a YOP student intern shall be documented.

(h) The job-site supervisors are employees of the DDSO who supervise the student interns in their job assignments. The job-site supervisors shall be paid by the DDSO.

(i) Cooperation and coordination in the establishment of partnership sites between OPWDD and OMH shall be permitted. Partnership sites are those YOP sites, where due to the proximity of DDSO facilities and OMH psychiatric centers, the YOP has the ability to offer student interns a wider range of job opportunities and occupational experiences in serving persons with mental illness. In these instances, the partnership sites YOP student interns shall be the responsibility of the local OPWDD program supervisor.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 605.99 Glossary

(a) Disabilities, Office for People With Developmental (OPWDD). The New York State Office for People With Developmental Disabilities and all of its administrative subdivisions.

(b) Health, Office of Mental (OMH). The New York State Office of Mental Health and all of its administrative subdivisions.

(c) Intern, student. For the purposes of this Part, a student intern is defined as an eligible high school student, who has applied and been accepted for participation in the Youth Opportunity Program.

(d) Office, Developmental Disability Service (DDSO). The local administrative unit that has major responsibility for the planning and development of community, residential and other program services for persons with developmental disabilities. The DDSO is responsible for coordinating the service delivery system within a particular service area, planning with community and provider agencies, and ensuring the specific placement of individuals and program plans and provider training programs are implemented.

(e) Program, Youth Opportunity (YOP). The OPWDD Youth Opportunity Program is a part-time work experience and career-oriented training program for secondary school youth who meet the definition of economically disadvantaged as stated in the Higher Education Opportunity Program (HEOP) guidelines as described in Title 8 NYCRR Subpart 27-1.1(b)(1), Table II for applicants entering the YOP program between July 1, 1993 and June 30, 1994, and Table III for those applicants entering the program on or after July 1, 1994. YOP is designed for the placement and training of students, who will gain direct work experience with persons with developmental disabilities. In some instances, due to a partnership between OPWDD and the Office of Mental Health (OMH), students will gain direct work experience with persons with mental illness.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 606 Availability and Access to Incorporated by Reference Materials Contained in 14 NYCRR Parts 600-699 and 14 NYCRR Parts 1-500 Applicable to Services and Programs Certified and/or Operated by the Office for People With Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 606.1 Applicability

(a) The documents cited in this Part are referenced in this Title which is applicable to the certification and operation of facilities certified and/or operated by the Office for People With Developmental Disabilities.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 606.2 Background and intent

(a) Chapter 941 of the Laws of 1984 permits State agencies to file with the Secretary of State codes, rules and regulations that were previously incorporated by reference in the agency's codes, rules and regulations, but not filed with the Secretary of State.

(b) Prior to the amendment of section 102 of the Executive Law by chapter 941, there was a requirement that the Secretary of State must publish every code, rule and regulation in the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR).

(c) As amended, section 102 of the Executive Law now exempts certain codes, rules or regulations from publication in the NYCRR, if the code, rule or regulation has been otherwise published by the Federal government or by a private publisher.

(d) Chapter 941 requires that exempt publications must be made available for public use and inspection at the New York State Department of State. Hence, because it will be the duty of the Secretary of State to maintain a master compilation of all codes, rules and regulations including those Federal and private publications that will not be printed in NYCRR and because it will be the duty of the Secretary of State to maintain historical files containing the official text of such documents, it is necessary that all referenced codes, rules and regulations be prepared and submitted for filing in a manner that will ensure that the text of each document is identifiable and available to the public.

(e) It is understood that many of the referenced documents in question have to do with codes, rules and regulations that have been adopted to protect the public health, safety and welfare.

(f) Since the enforceability of those codes, rules or regulations may depend on evidence that the material was available and is actually filed with the Secretary of State, it is essential that the text of such documents be identifiable and retrievable from the files of the Department of State.

(g) To ensure the provisions of chapter 941 of the Laws of 1984 are met, the Department of State has set forth rules in 19 NYCRR 261.2.

(h) This Part, established pursuant to section 2 of chapter 941 of the Laws of 1984, and in accordance with section 261.2 of 19 NYCRR 261 sets forth a comprehensive listing of incorporation by reference codes, rules and regulations, and all other referenced published data, criteria, standards, specifications, techniques, illustrations or information which are contained in this Title and are applicable to facilities certified and/or operated by the OPWDD.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 606.3 Statutory authority

(a) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary to implement any matter under his or her jurisdiction.

(b) The rules of the Department of State, promulgated as an amendment to 19 NYCRR 261.6 require all State agencies to submit certain referenced documents included by reference in the agencys' codes, rules and regulations, to the Department of State for filing.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 606.4 Documents incorporated by reference

(a) American Hospital Formulary Service (1983 Edition). This document is published by the American Society of Hospital Pharmacists, 4630 Montgomery Avenue, Washington, DC 20014. Reference to this document may be found in:

(1) section 679.4(c) of 14 NYCRR Part 679;

(2) section 680.7(c) of 14 NYCRR Part 680; and

(3) section 681.7(f) of 14 NYCRR Part 681.

(b) American National Standard Safety Code for Elevators (ANSI A17.1-1971). This document is published by the American Society of Mechanical Engineers, United Engineering Center, 345 East 47th Street, New York, NY 10017. Reference to this document may be found in:

(1) section 676.8(b) of 14 NYCRR Part 676; and

(2) section 690.10(c) of 14 NYCRR Part 690.

(c) American Society of Heating, Refrigeration and Air Conditioning Engineer's (ASHRAE) Guide (1973, 1974, 1975 Editions). This document is published by ASHRAE, Inc., 345 East 47th Street, New York, NY 10017. Reference to this document may be found in:

(1) section 77.3(a) of 14 NYCRR Part 77;

(2) section 150.7(a) of 14 NYCRR Part 150; and

(3) section 681.10(a) of 14 NYCRR Part 681.

(d) American Standard Specifications for Making Buildings and Facilities Accessible to and Useable by the Handicapped (ANSIA117.1 [1980]). This document is published by the American National Standards Institute, Inc., 1430 Broadway, New York, NY 10018. Reference to this document may be found in:

(1) section 113.8(d) of 14 NYCRR Part 113;

(2) section 114.8(d) of 14 NYCRR Part 114;

(3) section 676.8(b) of 14 NYCRR Part 676;

(4) section 679.4(c) of 14 NYCRR Part 679;

(5) section 681.10(a) of 14 NYCRR Part 681;

(6) section 690.10(c) of 14 NYCRR Part 690; and

(7) section 690.10(e) of 14 NYCRR Part 690.

(e) Article 5, title 6 of the New York Social Services Law relating to Additional State Payments for Eligible Aged, Blind and Disabled Persons (1976). Published in Book 52A of McKinney's Consolidated Laws of New York, West Publishing Company, St. Paul, MN. Reference to this document may be documented in:

(1) section 686.4(a)(17) of 14 NYCRR Part 686.

(f) Building Code of the City of New York (1974 Edition). This document is published by the City of New York, The City Records Sales Office, 31 Chambers St., New York, NY 10007. Reference to this document may be found in:

(1) section 681.10(a) of 14 NYCRR Part 681; and

(2) section 686.1(c) of 14 NYCRR Part 686.

(g) Code of Federal Regulations, 42 CFR 405.520-405.525, Resident, Intern, and Medical Student Training Program Requirements enacted pursuant to the Health Insurance for Aged and Disabled Act (1982 Edition). This document is published by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Reference to his document may be found in:

(1) section 85.7(b) of 14 NYCRR Part 85.

(h) Code of Federal Regulations-1982 Edition, 42 CFR 405.1101, 435.1009, 441.1-441.115, 442.400-442.516, 456.1-456.23, 456.350-456.438. This document is published by the Office of the Federal Register, National Archives and Records Service, General Services Administration, U.S. Government Printing Office, Washington, DC 20402. Reference to this document may be found in:

(1) section 681.3(o) of 14 NYCRR Part 681; and

(2) section 690.13(ss) of 14 NYCRR Part 690.

(i) Diagnostic and Statistical Manual II (DSM II-1968 Edition). This document is published by the American Psychiatric Association, 1700 18th Street, N.W., Washington, DC 20009. Reference to this document may be found in:

(1) section 679.4(b)(3) of 14 NYCRR Part 679; and

(2) section 679.4(c)(8) of 14 NYCRR Part 679.

(j) Drinking Water Supplies, Part 5 of Title 10 NYCRR (1981 Edition). This document is published by the New York State Department of Health, Bureau of Management Services, Albany, NY 12237. This document is referenced in:

(1) section 77.3(a) of 14 NYCRR Part 77;

(2) section 150.7(a) of 14 NYCRR Part 150;

(3) section 676.8(b) of 14 NYCRR Part 676;

(4) section 681.10(a) of 14 NYCRR Part 681; and

(5) section 690.10(c) of 14 NYCRR Part 690.

(k) Estimated Useful Lives of Depreciable Hospital Assets (2004 Edition). This document is published by Health Forum, Inc., an American Hospital Association Company, One North Franklin, 28th Floor, Chicago, IL 60606-3421. Reference to this document may be found in:

(1) section 635-6.4(d) of 14 NYCRR Part 635.

(2) section 635-6.6(a)(3) of 14 NYCRR Part 635.

(l) Federal Interpretive Guidelines and Survey Procedures for the Application of the Standards for Intermediate Care Facilities for the Mentally Retarded (ICF/MR) as They Apply to Facilities Serving 15 or Fewer Persons, 1982 Edition ( 42 CFR 442 Subpart G). This document is published by the Department of Health and Human Services, Health Care Financing Administration, Health Standards and Quality Bureau, 1849 Gwynn Oak Avenue, Baltimore, MD 21207. Reference to this document may be found in:

(1) section 681.13(o) of 14 NYCRR Part 681; and

(2) section 690.13(ss) of 14 NYCRR Part 690.

(m) Federal Interpretive Guidelines and Survey Procedures for the Application of the Standards for Intermediate Care Facilities for the Mentally Retarded (ICF/MR) as They Apply to Facilities Serving More Than 15 Persons, 1977 Edition ( 45 CFR 249.13). This document is published by the Department of Health and Human Services, Health Care Financing Administration, Health Standards and Quality Bureau, 1849 Gwynn Oak Avenue, Baltimore, MD 21207. Reference to this document may be found in:

(1) section 681.3(o) of 14 NYCRR Part 681; and

(2) section 690.13(ss) of 14 NYCRR Part 690.

(n) Health Insurance for the Aged and Disabled Act (1965 Edition). This document is published by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Reference to this document may be found in:

(1) section 85.7(b) of 14 NYCRR Part 85.

(o) Household Fire Warning Equipment-NFPA #74 (1980 Edition). This document is published by the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. Reference to this document may be found in:

(1) section 681.10(b) of 14 NYCRR Part 681; and

(2) section 686.1(c) of 14 NYCRR Part 686.

(p) Illuminating Engineering Society Lighting Handbook (1981 Edition). This document is published by The Illuminating Engineering Society of North America, 345 East 47th Street, New York, NY 10017. Reference to this document may be found in:

(1) section 77.3(a) of 14 NYCRR Part 77;

(2) section 150.7(a) of 14 NYCRR Part 150; and

(3) section 681.10(a) of 14 NYCRR Part 681.

(q) Immunization Guidelines (1982 Edition) based on the Recommendations of the United States Public Health Services Advisory Committee on Immunization Practices and the Committee on the Control of Infectious Diseases of the American Academy on Pediatrics Recommendations on Immunization Control. This document is published by the New York State Department of Health, Albany, NY 12237. Reference to this document may be found in:

(1) section 680.7(b) of 14 NYCRR Part 680;

(2) section 681.7(e) of 14 NYCRR Part 681; and

(3) section 690.7(d) of 14 NYCRR Part 690.

(r) Incident Reporting Manual (1982 Edition). This document is published by the Office for People With Developmental Disabilities, 44 Holland Avenue, Albany, NY 12229. Reference to this document may be found in:

(1) sections 24.1 and 24.2 of 14 NYCRR Part 24;

(2) section 86.5(b)(2) of 14 NYCRR Part 86;

(3) section 676.4(b) of 14 NYCRR Part 676; and

(4) section 680.4(r) of 14 NYCRR Part 680.

(u) International Classification of Diseases-Clinical Modification, 9th Revision-1979 Edition (ICD-CM9). This document is published by the Commission on Professional and Hospital Activities, 1968 Green Road, Ann Arbor, MI 48105. Reference to this document may be found in:

(1) section 679.4(b)(3) of 14 NYCRR Part 679; and

(2) section 679.4(c)(8) of 14 NYCRR Part 679.

(v) Life Safety Code of the National Fire Protection Association (NFPA) Chapter 10, 1981 Edition. This document is published by the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. Reference to this document may be found in:

(1) section 77.3(a)(2) of 14 NYCRR Part 77;

(2) section 77.3(d) of 14 NYCRR Part 77;

(3) section 86.9(a) of 14 NYCRR Part 86;

(4) section 86.9(b) of 14 NYCRR Part 86;

(5) section 150.7(a) of 14 NYCRR Part 150;

(6) section 676.8(b) of 14 NYCRR Part 676;

(7) section 679.4(c) of 14 NYCRR Part 679;

(8) section 681.10(a) of 14 NYCRR Part 681;

(9) section 681.10(b) of 14 NYCRR Part 681;

(10) section 681.10(c) of 14 NYCRR Part 681;

(11) section 686.1(c) of 14 NYCRR Part 686; and

(12) section 690.10(c) of 14 NYCRR Part 690.

(w) National Council for Therapeutic Recreation Certification Qualifications for Therapeutic Recreation Specialist (1982 Edition) as published in the October 1982 Edition of the Certification Newsletter (Vol. III, Issue I). This document is published by the National Council for Therapeutic Recreation Certification, 3101 Park Center Drive, Alexandria, VA 22302. Reference to this document may be found in:

(1) section 679.7(z) of 14 NYCRR Part 679.

(x) New York State Energy Conservation Construction Code (1979 Edition). This document is published by the New York State Energy Office, Division of Conservation, Empire State Plaza, Albany, NY 12223. Reference to this document may be found in:

(1) section 676.8(b) of 14 NYCRR Part 676; and

(2) section 690.10(c) of 14 NYCRR Part 690.

(y) New York State Maximum Reimbursable Pricing Schedule for Drugs, Medical Equipment and Supplies (current 1984 Edition). This document is published by the New York State Department of Social Services, 40 North Pearl Street, Albany, NY 12243. This document is referenced in:

(1) section 679.4(c) of 14 NYCRR Part 679.

(z) Nutrition Allowances as Recommended by the Food and Nutrition Board, National Research Counsel, National Academy of Science (9th Edition, 1980). This document is published by the National Academy of Sciences, Office of Publications, 2102 Constitution Avenue, N.W., Washington, DC 20418. Reference to this document may be found in:

(1) section 679.4(c) of 14 NYCRR Part 679;

(2) section 680.7(b) of 14 NYCRR Part 680; and

(3) section 681.7(d) of 14 NYCRR Part 681.

(aa) Office for People With Developmental Disabilities Policies (1981, 1982 and 1983 Editions) relevant to the operation of intermediate care facilities for individuals with developmental disabilities, as published in 14 NYCRR Part 681. These documents are published by OPWDD, Standards and Procedures Review Unit, 44 Holland Avenue, Albany, NY 12229. These documents are referenced throughout 14 NYCRR Part 681 and concern themselves with:

(1) ICF 1.1-Glossary for intermediate care facility policies;

(2) ICF 2.1-Admission to a developmental center;

(3) ICF 2.2-Admission to a State-operated community-based ICF/DD;

(4) ICF 2.3-Admission to a privately operated community-based ICF/DD;

(5) ICF 3.1-Reporting of temporary overnight absences/leaves of absence;

(6) ICF 3.2-Guidelines for reserving ICF beds during client hospitalization;

(7) ICF 3.3-Guidelines for requesting special limits for reserved ICF bed payments during client hospitalization;

(8) ICF 3.4-Client personal monies accounts; and

(9) ICF 3.5-Maintenance of personal monies account ledger card.

(ab) OPWDD Policy and Procedures Manual (1977 Edition with updates). This document is published by the OPWDD, 44 Holland Avenue, Albany, NY 12229. Reference to this document may be found in:

(1) section 6.1 of 14 NYCRR Part 6;

(2) section 15.1(c) of 14 NYCRR Part 15;

(3) section 680.6 of 14 NYCRR Part 680;

(4) section 681.11(e) of 14 NYCRR Part 681;

(5) section 690.3(c) of 14 NYCRR Part 690;

(6) section 690.4(c) of 14 NYCRR Part 690;

(7) section 690.5(n) of 14 NYCRR Part 690;

(8) section 690.7(e) of 14 NYCRR Part 690; and

(9) section 690.7(f) of 14 NYCRR Part 690.

(ac) Rehabilitation Act of 1973 (Articles 701-794). This document is published by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Reference to this document may be found in:

(1) section 679.4(c) of 14 NYCRR Part 679; and

(2) section 690.10(e) of 14 NYCRR Part 690.

(ad) Rural Water Supply (1966 Edition). This document is published by the New York State Department of Health, Albany, NY 12237. This document is referenced in:

(1) section 77.3(a) of 14 NYCRR Part 77;

(2) section 676.8(b) of 14 NYCRR Part 676;

(3) section 681.10(a) of 14 NYCRR Part 681; and

(4) section 690.10(c) of 14 NYCRR Part 690.

(ae) Social Security Act, Section 1122 (1976 Edition). This document is published by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Reference to this document may be found in:

(1) section 51.7(g) of 14 NYCRR Part 51.

(af) Social Security Act-Title XIX (1976 Edition). This document is published by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Reference to this document may be found in:

(1) section 676.12(gg) of 14 NYCRR Part 676;

(2) section 679.1(a) of 14 NYCRR Part 679;

(3) section 680.12(b) of 14 NYCRR Part 680;

(4) section 681.14(c) of 14 NYCRR Part 681;

(5) section 681.13(gg) of 14 NYCRR Part 681;

(6) section 690.1(a) of 14 NYCRR Part 690;

(7) section 690.4(c) of 14 NYCRR Part 690; and

(8) section 690.13(ggg) of 14 NYCRR Part 690.

(ag) Title XVI of the Federal Social Security Act (1976 Edition). This document is published by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Reference to this document may be found in:

(1) section 686.4(a)(17) of 14 NYCRR Part 686.

(ah) Tuberculosis Control Manual (1983 Edition) based on the American College of Chest Physicians and American Academy of Pediatrics Recommendations on Tuberculosis Control. This document is published by the New York State Department of Health, Bureau of Communicable Disease Control, Albany, NY 12237. This document is referenced in:

(1) section 679.4(c) of 14 NYCRR Part 679;

(2) section 680.7(b) of 14 NYCRR Part 680;

(3) section 681.7(e) of 14 NYCRR Part 681; and

(4) section 690.7(d) of 14 NYCRR Part 690.

(ai) Waste Treatment Handbook-Individual Household Systems (1977 Edition). This document is published by the New York State Department of Health, Division of Sanitary Engineering, Albany, NY 12237. This document is referenced in:

(1) section 77.3(a) of 14 NYCRR Part 77; and

(2) section 150.7(a) of 14 NYCRR Part 150.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 606.5 Availability

Availability and accessibility of documents cited in this Part is as follows:

(a) New York State Office for People With Developmental Disabilities.

(1) Address: Public Access Officer, 44 Holland Avenue, Albany, NY 12229.

(2) Telephone: (518) 474-8921.

(3) Hours: Monday through Friday, 8:30 a.m.-4:30 p.m.

(b) New York State Department of State.

(1) Address: Division of Information Services, 162 Washington Avenue, Albany, NY 12231.

(2) Telephone: (518) 474-6957.

(3) Hours: Monday through Friday, 8:30 a.m.-4:30 p.m.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 619 Certification of Facilities and Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 619.1 Applicability

This Part applies to all facilities and services certified by OPWDD.

History

Adopted New York State Register October 18, 2017/Volume XXXIX, Issue 42, eff. 10/18/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 619.2 Classes of Operating Certificates

(a) This Part supersedes the regulations on classes of operating certificates in Part 70 of this Title.

(b) For the purposes of this Part, a class means a category of facilities or services subject to issuance of an operating certificate and distinguished by the needs of individuals served, services provided, staffing, and, for facilities, the premises of the facility.

(c) For the purposes of this Part, an operating certificate means a document pertinent to the appropriate class of facility or service that conveys authorization by OPWDD of a provider of services to operate specific facilities or to deliver certain services identified on or as an attachment to such document.

(d) Classes of operating certificates issued by OPWDD:

(1) Community residence. An OPWDD certified community residence is a residential facility that provides health and habilitation services and supervision for individuals with intellectual or developmental disabilities. Community residences include three basic types of facilities: Supervised and Supportive Community Residences (CRs) and Individualized Residential Alternatives (IRAs). (IRAs are further categorized by capacity and conversion status.)

(2) Individualized Residential Alternative/Free Standing Respite (IRA/FSR). An OPWDD certified IRA/FSR is a residential facility that provides respite services, including health care and super vision, for individuals with intellectual or developmental disabilities. An IRA/FSR is certified to house and provide services to a certain number of individuals on a time-limited basis.

(3) Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID). An ICF/IID is a residential facility that provides comprehensive care, supervision, habilitation, and treatment for individuals with intellectual and developmental disabilities, that must be operated in compliance with federal ICF/IID regulations in 42 CFR 483 and applicable regulations of this Title. (Note: Certain ICFs/IID are certified by the State Department of Health (DOH); this Part does not apply to those ICFs/IID that are certified by DOH.)

(4) Private school. An OPWDD certified private school is a residential facility that provides health care, supervision, and training and/or education services for individuals with intellectual or developmental disabilities. Private schools include Residential Schools and Integrated Residential Communities.

(5) Family Care Home (FCH). An OPWDD certified family care home is a private home that provides health and habilitation services to individuals with intellectual or developmental disabilities.

(6) Specialty hospital. An OPWDD certified Specialty Hospital is a facility that provides residential care and services by or under the direction of a physician to individuals with intellectual or developmental disabilities who require specialized services to address significant health care needs.

(7) Outpatient/Non-residential facility. An OPWDD certified outpatient/non-residential facility may provide outpatient or nonresidential examination, diagnosis, care, treatment, habilitation, or training services for individuals with intellectual or developmental disabilities. Outpatient/Non-residential facilities include:

(i) Day services facilities, including but not limited to, facilities certified to provide Day Habilitation, Day Treatment, Day Training (including Sheltered Workshops), and Site-based Prevocational Services; and

(ii) Article 16 Clinics.

(8) Diagnostic and research clinic An OPWDD certified Diagnostic and Research Clinic is a facility that provides comprehensive behavioral and medically-related assessment and diagnostic services to individuals with intellectual or developmental disabilities, or individuals suspected of having intellectual or developmental disabilities.

(9) Home and Community Based Services (HCBS). OPWDD certified HCBS waiver services include an array of supports and services, including habilitation services that enable individuals with intellectual or developmental disabilities to live and receive services in community settings as an alternative ICF placement. HCBS waiver services may be provided in certified and non-certified settings, but the HCBS waiver services and the certified facilities have separate operating certificates.

(i) HCBS waiver services provided in certified facilities in clude but are not limited to:

(a) Residential Habilitation services;

(b) Day Habilitation services;

(d) Respite services.

(ii) HCBS waiver services provided in non-certified settings include but are not limited to:

(a) Day Habilitation (other than facility based day habilitation);

(b) Community Habilitation Services

(d) Community Prevocational Services;

(e) Supported Employment; and

(f) Respite (other than facility based respite).

(iii) HCBS waiver, other services and supports, include but are not limited to:

(a) Plan of Care Support Services (a form of service coordination);

(b) Adaptive Technology;

(d) Fiscal Intermediary (FI) Services. FI services are necessary for administering self-directed services, including but not limited to the following other HCBS services and supports:

(1) Support Brokerage;

(2) Community Transition Services;

(3) Individual Directed Goods and Services; and

(4) Live-in Caregiver.

(10) Services approved in a Medicaid state plan that are designated for individuals with intellectual or developmental disabilities.

(i) Such Medicaid state plan services include:

(a) Comprehensive Health Home Care Management;

(b) Basic Home and Community Based Services (HCBS) Plan Support; and

History

Adopted New York State Register October 18, 2017/Volume XXXIX, Issue 42, eff. 10/18/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 619.3 General Provisions

(a) An agency must apply for an operating certificate in the form and format specified by OPWDD.

(b) All operating certificate holders must comply with applicable regulations in this Title.

(c) The issuance of the initial operating certificate and sub sequent recertification for all classes of operating certificates will be based on a certification process conducted by OPWDD in the form and format specified by OPWDD. This process supersedes the certification process identified in subdivisions 633.2(c); 633.99(bx) and (cp); 635-1.2(g); 635-99(bo) and (cb); 671.1(d); 671.99(g) and (h); 679.1(d); 681.99(d) and (f); 686.2(e); 686.99(ad) and (ah); and 690.1(e) of this Title.

(d) The initial certification and amendments to all classes of operating certificates, except those services enumerated in paragraph ten of subdivision d of section 619.2 of this Part that were certified effective July 2, 2020, must be in accordance with certification of need and terms of approval requirements in Part 620 of this title. Beginning July 3, 2020, initial certification of those exempt services and amendments to those services, must comply with certification of need and terms of approval requirements in Part 620 of this title.

(e) An operating certificate may be issued for a period of up to three years; however, OPWDD reserves the right to issue an operating certificate for a shorter period of time.

(f) One operating certificate may be issued for two or more facilities in the same program class.

(g) The certification or recertification of facilities and/or services may be contingent on the receipt of an acceptable plan of corrective action in a form and format specified by OPWDD.

(h) An operating certificate may be revoked, suspended, or limited upon OPWDD's determination that the holder of the certificate has failed to comply with the terms of its operating certificate. The operating certificate holder may appeal such determination pursuant to section 16.17 of the Mental Hygiene Law.

History

Adopted New York State Register October 18, 2017/Volume XXXIX, Issue 42, eff. 10/18/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 619.4 Administration

(a) The agency must provide OPWDD with a list of the names and addresses of members of the agency's Board of Directors on at least an annual basis and as changes occur.

(b) The agency must establish and maintain up to date policies and procedures in compliance with applicable regulations in this Title.

(c) The agency must maintain financial records in compliance with applicable regulations in this Title and must submit financial reports to OPWDD in accordance with Subpart 635-4 of this Part.

History

Adopted New York State Register October 18, 2017/Volume XXXIX, Issue 42, eff. 10/18/2017

Part 620 Certification of Need for Administrative Review Projects, Substantial Review Projects and Terms of Approval for Acquisition of Property or Construction

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.1 Applicability

(a) This Part supersedes 14 NYCRR Part 53 as it relates to services operated by or under the auspices of the Office for People With Developmental Disabilities (hereinafter known as OPWDD).

(b) Except as specified below, this Part applies to any individual, association, corporation or proposed corporation, or public or private agency which proposes an administrative review project (see glossary, section 620.13 of this Part) or substantial review project (see glossary) as listed in section 620.5 or 620.6 of this Part and submits an application for certification of need (see glossary) for that project.

(c) This Part shall not apply to any proposed actions by a place/entity required by article 28 of the Public Health Law to receive approval for such actions from the Commissioner of Health and/or the Public Health Council.

(d) This Part shall not apply to any place/entity for which an operating certificate is not required by article 16 of the Mental Hygiene Law.

(e) This Part shall not apply to any facility (see glossary, section 620.13 of this Part) set forth in section 13.17 of the Mental Hygiene Law, or to family care homes.

(f) This Part applies to proposed administrative review or substantial review projects which are submitted to OPWDD for approval after the effective date of this Part [December 1, 1988]. Projects submitted prior to the effective date of this Part shall be processed to decision in accordance with the criteria and procedures in effect and applicable to the project at the time of submission.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.2 Statutory authority

(a) Section 5.07 (b)(1) of the Mental Hygiene Law requires that there be a statewide comprehensive five-year plan for the provision of all State and local services for persons with developmental disabilities which is formulated from local comprehensive plans.

(b) Section 13.09 (b) of the Mental Hygiene Law grants the commissioner (see glossary, section 620.13 of this Part) the authority to adopt rules and regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 16.00 of the Mental Hygiene Law grants the commissioner the authority to adopt and promulgate any regulation reasonably necessary to implement and effectively exercise the powers and perform duties set forth in article 16 of the Mental Hygiene Law, which are necessary to maintain the consistent high quality of services provided within the State to its citizens with developmental disabilities.

(d) Article 16 of the Mental Hygiene Law addresses the planning process for services between OPWDD and the local governmental unit (see glossary, section 620.13 of this Part).

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.3 Background and intent

(a) To ensure that all program (see glossary, section 620.13 of this Part) development projects ultimately requiring an operating certificate from OPWDD are included in the plans (see glossary) of statewide, regional and county authorities.

(b) To affirm that planning is considered to be a long-term and continuous process.

(c) To affirm that plans are to be developed at the county level, integrated at regional levels (B/DDSO service areas and health system agency [see glossary, section 620.13 of this Part] regions), and coalesced in the statewide 5.07 plan and OPWDD operational planning documents (see glossary).

(d) To clearly establish that an application for certification of need is a controlling mechanism to ensure that a project, as proposed, conforms with the parameters as specified in the planning process.

(e) To clearly establish that, as a controlling mechanism, the requirement for the submission of an application for certification of need provides the commissioner with the opportunity to modify any parameters of the proposed program, including type, capacity, or even continued inclusion in the statewide plan (see glossary, section 620.13 of this Part).

(f) To expedite the review of projects that are in conformance with the statewide plan to allow for the development and operation of needed and appropriate programs without undue delay.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.4 Project planning

(a) The development of a comprehensive service delivery system to meet the needs of persons with developmental disabilities begins with the identification of those needs and the types of programs with the service capability to meet such needs. This shall be done through joint planning efforts on a county, regional and statewide basis by OPWDD, local governmental units and local health systems agencies. The local governmental units and local health systems agencies shall be given the opportunity to review operational planning documents developed by OPWDD, and to make recommendations to the commissioner.

(1) OPWDD shall project the number of persons with developmental disabilities in need, as identified by a data based system, on no less than a triennial basis.

(2) OPWDD shall develop a proposal for an ideal service/program mix to meet the needs of the identified population and provide this information to the following planning bodies on no less than a triennial basis:

(i) B/DDSO-for the services area under each B/DDSO's coordination;

(ii) local governmental unit-for each county;

(iii) health systems agency-for the locale within each agency's jurisdictional area.

(3) The appropriate B/DDSO, representing OPWDD at the local level, shall collaborate with the local governmental units and the health system agencies in its service area and assist them to the extent necessary in the development of local and regional plans.

(4) OPWDD, utilizing input from local and regional planning bodies, shall develop a statewide plan and operational planning documents.

(5) Appropriate operational planning documents, reflecting specific program development needs, shall be reviewed by the appropriate local governmental units and health systems agencies which shall be given the opportunity to comment upon such documents prior to actualization. It is at this time in the planning process that both the local governmental units and the health systems agencies are to consider and comment upon:

(i) the availability of facilities or services which may serve as alternatives or substitutes for the whole or any part of the proposed program and/or construction;

(ii) the adequacy of financial resources and sources of future revenue; and

(iii) the public need for the facility or services at the time and place and under the circumstances proposed.

(6) While planning bodies will have the opportunity for review of applications for certification of need at a subsequent time, it is at the point in the project planning process that OPWDD allocates funds for program development and/or construction that input from the local governmental units and the health systems agencies is of primary significance.

(b) Prior to formal submission of an application for certification of need, and as early as possible, it is required that the applicant consult with applicable local authorities, local governmental units and the appropriate health systems agency to ensure, to the extent possible, that the proposed project is needed and appropriate. In order to avoid unnecessary expenditures for the development of the application, and the more complex or expensive the anticipated project, the more attention must be paid to early and extensive contact with county, regional, and B/DDSO planning authorities.

(c) If either an administrative review or substantial review project should, at the time it moves forward to completion, result in an increase in cost or in client capacity or change in the class of operating certificate approved at the time of certification of need, it shall be necessary to submit an amended application for certification of need to address the change(s). If, for an administrative review project, costs exceed $600,000 or certified capacity is exceeded by 10 percent or five persons (whichever is greater), or there is a change in the operating certificate, section 620.6(b)(3) of this Part shall apply.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.5 Administrative review projects

(a) Applications for certification of need for administrative review projects shall be submitted, reviewed and approved in accordance with sections 620.7 and/or 620.9 of this Part.

(b) Administrative review projects include any of the following proposed actions:

(1) development or operation of a community residence (see glossary, section 620.13 of this Part);

(2) development of all other new programs requiring an operating certificate, and whose acquisition (see glossary), construction (see glossary), or capital expenditure for physical plant and/or equipment/assets in support of the programs, or a combination thereof, is estimated to be under $600,000;

(3) acquisition, construction, or capital expenditure for physical plant and/or equipment/assets in support of an existing program, or a combination thereof, estimated to be under $600,000 but more than $30,000;

(4) relocation of an existing program or part thereof:

(i) which involves acquisition of property and/or renovation or reconstruction by purchase costing less than $600,000; or

(ii) which involves acquisition of property and/or renovation or reconstruction by other means which, if acquired by purchase, would have cost less than $600,000;

(5) expansion or contraction of specific services currently offered;

(6) any change of ownership of a facility, program, or program site whether by purchase, donation, merger or otherwise;

(7) an increase or decrease in certified capacity of an existing program;

(8) an incorporation of a corporation, the certificate of which requires the approval of the commissioner subject to the provisions of section 620.8 of this Part;

(9) any amendment of a certificate of incorporation of an existing corporation extending its powers of purpose to enable it to operate a new program or facility subject to the provisions of section 620.8 of this Part;

(10) amendment of a certificate of incorporation which does not add or delete the power to provide services for persons with developmental disabilities, subject to the provisions of section 620.8 of this Part;

(11) the conversion of a program operated exempt from article 16 of the Mental Hygiene Law to become subject to article 16 of the Mental Hygiene Law; and

(12) the termination of an existing program.

(c) The proposed project is included in the planning process as evidenced by inclusion in OPWDD's operational planning documents. If a proposed project is inconsistent with operational planning documents, it shall be considered to be a substantial review project.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.6 Substantial review projects

(a) Applications for certification of need for substantial review projects shall be submitted, reviewed and approved in accordance with sections 620.7 and 620.10 of this Part.

(b) Excluding community residences in all instances, substantial review projects include one or more of the following:

(1) any acquisition of property (regardless of whether it allows for any change in service or certified capacity) by purchase which will or is expected to cost $600,000 or more, including costs of any renovation or reconstruction; or by other means which, if acquired by purchases, would have cost $600,000 or more including costs of any renovation or reconstruction;

(2) any construction or capital expenditure which is estimated to cost $600,000 or more, regardless of whether it allows for any change in service or certified capacity; and

(3) unless all involved planning bodies concur that the project should proceed and agree to waive the substantial review process, the process shall also apply to any administrative review project which, subsequent to the issuance of the original certification of need, but prior to issuance of an operating certificate:

(i) costs $600,000, or more;

(ii) exceeds certified capacity by 10 percent or 5 persons, whichever is greater; or

(iii) changes the proposed class of operating certificate.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.7 Requirements for submitting an application for certification of need for a new program or construction

(a) An application for certification of need for a new program or construction shall be in writing in the form and format approved by OPWDD. Submission of the application shall be in the manner specified by OPWDD.

(b) The applicant shall attest to his or her awareness of the requirements for operation in accordance with an operating certificate and the obligation to be certified prior to initiating operation and shall provide any other information as the commissioner may require.

(c) OPWDD shall advise the applicant of the procedures and schedule for review at the time of the submission of the application.

(d) The standards of this Part shall be applied to all applications at appropriate points in the program development process. Review and approval of a certification of need application does not in and of itself ensure program certification.

History

Amended, New York State Register September 10, 2014/Volume XXXVI, Issue 36, eff. 9/10/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.8 Approval of a certificate of incorporation or certificate of amendment

(a) All corporations that intend to provide services under the auspices of OPWDD, and for which this Part is applicable, shall hold a certificate of incorporation attesting to their authorization to deliver specified services to persons with developmental disabilities.

(b) No application for approval of a certificate of incorporation or certificate of amendment will be approved unless:

(1) the appropriate certification of need application has been submitted;

(2) the application, reviews, and proposed certificate show:

(i) compliance with all legal requirements applicable to the corporation or proposed corporation;

(ii) compliance with applicable regulations of the commissioner; and

(iii) the members of the broad of directors, officers, owners, partners and stockholders are of such character, experience, competence and standing as to give reasonable assurance of their ability to conduct the affairs of the program in the public interest and so as to provide proper care for the persons to be served by the proposed facility or program; and

(3) with respect to projects subject to OPWDD's jurisdiction, the commissioner may approve a certificate of incorporation or certificate of amendment of a certificate of incorporation prior to the completion of any of the procedures required in this Part if he or she is satisfied that the requirements will be fulfilled prior to the grant of any State aid.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.9 Review of certification of need application for administrative review projects

(a) The commissioner shall review the application for certification of need for completeness of information within 10 business days (see glossary, section 620.13 of this Part) of receipt. Within an additional five business days, the applicant shall be notified by certified mail of any lack of information, which shall be provided by the applicant within 30 calendar days or such additional time as may be requested by the applicant and approved by the commissioner. Failure to provide such information within the designated time shall constitute withdrawal of the application. If no additional information is requested within said period, the application shall be considered complete. Upon determination of receipt of a complete application, the commissioner shall immediately notify the applicant that review has begun.

(b) A copy of a complete application proposing an administrative review project shall be immediately forwarded by certified mail to the office of the appropriate local governmental unit in the area to be served; and shall allow it 10 business days from receipt in which to review the application and make recommendations to the commissioner. The commissioner or designee shall take no final action until such period has expired or opinions have been rendered by the local governmental unit, whichever is earlier.

(c) A copy of a complete application for a new program or construction (other than for a community residence), the cost of which is expected to be more than $30,000 but less than $600,000 and funded by Medicaid, shall be immediately forwarded by certified mail to the appropriate regional health systems agency and shall allow it 10 business days from receipt in which to review the application and make recommendations to the commissioner. The commissioner or designee shall take no final action until such period has expired or an opinion has been rendered by the health systems agency, whichever is earlier.

(d) A complete application for a new program or construction which is proposed to be funded through Medicaid shall be immediately forwarded to the designated State health planning and development agency (see glossary) by certified mail and it shall be allowed 10 business days from receipt in which to review the application and advise the commissioner of its opinion as to whether the application for certification of need be considered as acceptable. The commissioner shall take no final action on whether the application is acceptable until such period has expired or an opinion has been rendered by the designated State health planning and development agency, whichever is earlier.

(e) After such period as allowed the health system agency, the designated State health planning and development agency or local governmental unit, but within 30 business days of determination of receipt of a complete application, the commissioner may approve or disapprove the application without further review, as long as the application meets the criteria for an administrative review project set forth in section 620.5 of this Part.

(f) If a local governmental unit or health systems agency considers that a proposed administrative review project is inconsistent with OPWDD's operational planning documents, and the issues cannot be resolved between the objecting party and OPWDD, a hearing may be requested in conformance with Part 602 of this Title. If the charge of inconsistency is sustained by the hearing process, the proposal shall be considered a substantial review project.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.10 Review of certification of need application for substantial review projects

(a) The commissioner shall review the application for certification of need for completeness of information within 10 business days of receipt. Within an additional five business days, the applicant shall be notified by certified mail of any lack of information, which shall be provided by the applicant within 30 calendar days or such additional time as may be requested by the applicant and approved by the commissioner. Failure to provide such information within the designated time shall constitute withdrawal of the application. If no additional information is requested within said period, the application shall be considered complete.

(b) Upon determination of receipt of a complete application for a Medicaid funded program, the commissioner shall immediately notify the applicant that review has begun and provide copies of the application to the designated State health planning and development agency, the appropriate health systems agency, and the appropriate local governmental unit. Each party shall have 60 business days to review the application and submit findings and recommendations to the commissioner unless these planning bodies have reached an agreement with OPWDD and agree to waive the substantial review process.

(c) Upon receipt of a complete application, the commissioner shall provide a copy of such application to the office of the appropriate local governmental unit in the area to be served.

(d) The commissioner shall, within 90 business days of receipt of the complete application, make a decision on the application based on his or her review of recommendations by OPWDD staff, the report of the health systems agency, and the advice of the designated State health planning and development agency and the local governmental unit.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.11 Commissioner's decision regarding certification of need for all projects

(a) Review of all applications for certification of need shall take into consideration consistency with OPWDD's operational planning documents, current and accurate State budget information, current need data, and the standard criteria of:

(1) the character and competence of the operator(s);

(2) the fiscal viability and cost-effective feasibility; and

(3) the probability of operating in conformance with regulation.

(b) The commissioner's decision may be:

(1) approval of the project and authorization to proceed with development; or

(2) approval of the project, but denial of requested capital funding; or

(3) approval of the project, but denial of operating funds through Federal or State programs; or

(4) conditional approval of the project, with or without authorization to proceed; or

(5) disapproval of the project.

(c) If the commissioner intends to disapprove the project, he or she shall notify the applicant, and the health systems agency, the designated State health planning and development agency and the local governmental unit of his or her intent and provide the report of findings and the basis for the decision, and shall afford the applicant an opportunity to be heard in accordance with Part 602 of this Title before taking such action.

(1) If the commissioner intends to disapprove a project of which the health systems agency or the local governmental unit has recommended approval, he or she shall notify the health systems agency, the local governmental unit and the applicant, of the intended action and provide all parties with copies of the report.

(2) Said parties shall be afforded the opportunity to be heard in accordance with Part 602 of this Title. If such hearing is requested, it shall be held in accordance with the regulations of the commissioner.

(d) If the commissioner intends to approve a project over a recommendation of disapproval by the health systems agency or the local governmental unit he or she shall notify that agency, as well as the applicant, of his or her intent. Further, he or she shall provide all parties designated in subdivision (c) of this section, with copies of the findings and basis of decision, and shall afford the health systems agency and the local governmental unit an opportunity to be heard in accordance with Part 602 of this Title before taking such action.

(e) When a decision is reached, after a hearing if necessary, the commissioner shall notify the applicant and all reviewers of the decision, and shall also advise the applicant of the procedure to be followed in submitting additional information necessary for the development of a program prior to consideration as satisfactorily having met the requirements for an operating certificate.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 620.12 Terms of approval for acquisition of property or construction

(a) Within 120 calendar days of the commissioner's certification of need for a project involving construction and/or acquisition, the applicant shall provide for the commissioner's review acceptable architectural design development plans. Failure to provide such information within the time frame specified shall constitute withdrawal from the proposed project, unless the applicant has formally contacted OPWDD and received approval for an extension.

(b) Within 150 calendar days of the commissioner's approval of the design development plans, the applicant shall submit final drawings and specifications including cost estimates. Failure to provide such information within the time frame specified shall constitute withdrawal from the proposed project unless a request for an extension has been made and approved.

(c) The applicant shall not enter into a contract for construction until notified in writing of the approval of final drawings and specifications.

(d) The applicant shall request prior approval of any changes relating to the scope of the project, the cost of construction of major items or equipment proposed during construction.

(e) Upon completion, an onsite inspection of the construction and equipment shall be made to assure that such are in accordance with the prior approval of the commissioner.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 621 Financial Assistance for Capital Construction and Financing

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.1 Applicability

This Part shall apply to applicants (see glossary, section 621.17 of this Part) that propose to develop or finance community facilities (see glossary) for persons with developmental disabilities, based on expenditures for those costs as set forth herein. This Part relates to community facilities subject to certification by the Office for People With Developmental Disabilities. In addition this Part is applicable to those applicants that propose to develop or finance community facilities for persons with developmental disabilities which may be subject to certification or licensure by another appropriate New York State agency.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.2 Background and intent

(a) Three possible sources of funds are available for the capital costs (see glossary, section 621.17 of this Part) and other eligible costs as set forth in this Part of construction or financing for a community facility for which application can be made to OPWDD.

(1) One source of funds is a grant for State aid which may be made available to an applicant pursuant to article 41 of the Mental Hygiene Law.

(2) A mortgage loan from the New York State Housing Finance Agency (hereinafter referred to as HFA), made available pursuant to article 75 of the Mental Hygiene Law.

(3) A mortgage loan from the New York State Facilities Development Corporation (hereinafter referred to as FDC) pursuant to subdivision 13-d of section 5 of the Facilities Development Corporation Act from the proceeds of the sale of tax-exempt bonds and notes issued by the New York State Medical Care Facilities Finance Agency (hereinafter referred to as MCFFA) pursuant to such Act, for the purpose of financing or refinancing the construction, acquisition, reconstruction, rehabilitation or improvement of a community facility. For the purposes of this Part, such loan from the FDC may include and may be referred to herein, or in any document relating to such loans, as FDC mortgage loan, FDC loan, or FDC secured loan.

(b) This Part sets forth the conditions for obtaining a State aid grant, an HFA mortgage loan, or an FDC mortgage loan to meet the capital and other eligible costs as set forth herein for the construction or financing of a community facility.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.3 Statutory authority

(a) Section 13.07 of the Mental Hygiene Law sets forth the authority of OPWDD to pursue the expansion of services and the development of new methods of service delivery to serve the full range of needs of persons with developmental disabilities.

(b) 13.09 of the Mental Hygiene Law sets forth the authority of the commissioner to adopt rules and regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 41.18 and 41.23 of the Mental Hygiene Law set forth the authority of OPWDD to provide State aid funding for the capital costs for community facilities, pursuant to a local services or unified services plan.

(d) Section 75.17 of the Mental Hygiene Law sets forth the authority of the commissioner to approve mortgage loans for funds available from HFA.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.4 Requirements for a State aid grant

(a) A local government (see glossary, section 621.17 of this Part) or a voluntary agency (see glossary) may apply for a State aid grant for the capital costs of construction.

(b) A completed application must be submitted to the commissioner (see glossary, section 621.17) in the format and on the forms prescribed by the commissioner. The application must include a statement to the effect that, if the applicant is a voluntary agency, the applicant and OPWDD intend that the State aid grant must be repaid when and if the applicant receives an FDC mortgage loan pursuant to this Part; provided that such repayment shall be intended only for that portion of the State aid grant represented by underlying costs for which the FDC mortgage loan is made.

(c) Companies and sponsors or proposed incorporators of such companies, may apply for State aid, an HFA mortgage loan, or for both.

(d) A certification of need application pursuant to the commissioner's regulations must be completed and approved prior to the payment of State aid grant funds.

(e) The applicant must provide copies of existing contracts, if any, relating to the acquisition, construction and operation of the proposed facility.

(f) All applicants receiving State aid are required to establish and maintain accounting and fiscal records in a manner approved by the commissioner to reflect the receipt and expenditure of funds allotted and paid for capital costs. Similar suitable accounts shall be maintained to show receipt and disbursement of Federal, local or other funds used for matching purposes.

(g) The applicant for a State aid grant must have or will have, prior to receiving State aid funds, a fee simple or such other estate or interest in the site including necessary easements and rights-of-way, sufficient to assure for a period not less than 50 years undisturbed use and possession for the purpose of the facility. At the commissioner's discretion, a limited amount of grant funds may be provided to the applicant prior to the applicant taking fee simple to the site, provided that such funds are placed in escrow and are used solely for the purpose of acquiring title to the site.

(h) The nature and extent of the applicant's present or anticipated property rights in the proposed site must be established by a survey of the site, the surveyor's metes and bounds property description and an acceptable policy of title insurance.

(i) The commissioner shall have access to the books, records and physical site of any facility receiving a State aid grant.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.5 Eligible capital costs for a State aid grant

(a) Capital costs eligible for State aid shall only include costs incurred by the applicant.

(b) The amount of capital costs eligible for State aid shall be determined by the commissioner. The value of a site shall be established by an independent appraisal by OPWDD, its agents, or contractors. Capital costs eligible for State aid may include:

(1) acquisition of real property;

(2) design, including architectural and engineering services;

(3) construction;

(4) reconstruction;

(5) rehabilitation and improvement;

(6) original furnishings and equipment;

(7) site development; and

(8) appurtenances.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.6 Method of payment of State aid grants

(a) Payments shall be made pursuant to a schedule determined by the commissioner. Upon completion of the project, an audit shall be conducted, the form of which shall be acceptable to the State Comptroller. A final payment will be made upon completion of the audit and its acceptance by the commissioner.

(b) Certification that payment of any of the foregoing installments is due an applicant, is subject to inspection by OPWDD to determine that the work has been performed upon a project, or purchases have been made, in accordance with the approved plans and specifications.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.7 Requirements for a Housing Finance Agency mortgage loan

(a) An applicant may apply for an HFA mortgage loan, for State aid or for both.

(b) A completed application must be submitted to the commissioner in the format and on forms prescribed by the commissioner.

(c) A certification of need application pursuant to the commissioner's regulations must be completed and approved prior to the payment of HFA mortgage loan funds.

(d) When applying for an HFA mortgage loan, the applicant shall prepare and submit a certificate of incorporation in a form satisfactory to the commissioner for the corporation to be formed which will acquire the site and construct the facility and receive the mortgage loan.

(e) The applicant for an HFA mortgage loan must have or will have, at the time the HFA mortgage is executed and delivered, a fee simple including necessary easements and rights-of-way free and clear of all covenants, restrictions, mortgages, easements and encumbrances, sufficient to assure undisturbed use and possession for the purpose of the facility except that the facility may be subject to the New York State Housing Finance Agency mortgage to be obtained pursuant to article 75 of the Mental Hygiene Law.

(f) All applicants receiving an HFA mortgage loan are required to establish and maintain accounting and fiscal records in a manner approved by the commissioner to reflect the receipt and expenditure of funds allotted and paid for capital costs. Similar suitable accounts shall be maintained to show receipt and disbursement of Federal, local or other finds used for matching purposes.

(g) The commissioner and the HFA shall have access to the books, records and physical site of any facility receiving an HFA mortgage loan.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.8 Eligible capital costs for a Housing Finance Agency mortgage loan

(a) Capital costs (referred to as "project costs" in section 75.05 of the Mental Hygiene Law) eligible for a HFA mortgage loan may only include costs incurred by the applicant pursuant to article 75 of the Mental Hygiene Law relating to:

(1) refinancing of existing indebtedness associated with the development of the project which constitutes a lien or other encumbrance upon the real property or assets of a company to be mortgaged or otherwise pledged to the agency;

(2) carrying charges during construction up to and including the occupancy date;

(3) working capital not exceeding three percent of the estimated total project cost or three percent of the actual total final project costs, whichever is larger;

(4) studies, surveys, plans and specifications;

(5) architectural engineering, legal or other special services;

(6) acquisition of land and any improvements thereon;

(7) site preparation and development;

(8) construction, reconstruction, rehabilitation and improvement;

(9) equipment, including fixtures and articles of personal property required for the operation of the facility;

(10) the reasonable cost of financing during the course of the development of the project up to and including the occupancy date;

(11) the fees imposed by the commissioner and the New York State Housing Finance Agency and other fees and necessary expenses incurred in connection with the initial occupancy of the project; and

(12) such other items as the commissioner may determine to be reasonable and necessary for the development of the project.

(b) The foregoing costs shall be reduced by:

(1) any and all rents and other net revenues from the operation of the real property, improvements or personal property on the site of the facility; and

(2) any portion of any State, Federal or municipal assistance grant which the commissioner, prior to the making of a mortgage loan, shall determine to be available to the applicant to meet the project costs prior to the initial occupancy of the project.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.9 Fees and charges in connection with a Housing Finance Agency mortgage loan

(a) For the purposes of this section:

(1) Development period is the period commencing as of the date of the inception of a project receiving an HFA mortgage loan and terminating as of the tentative occupancy date.

(2) Operational period is the period commencing as of the tentative occupancy date of the aforementioned project and terminating as of the date the mortgage is paid or provision has been made for such payment.

(3) Occupancy date means the occupancy date as such is defined in the HFA mortgage. The occupancy date will be determined by the commissioner after an audit of the development period accounts.

(4) Tentative occupancy date is the first day of the first month following the expiration of 90 days after the later of the following two events:

(i) the issuance of a certificate of occupancy or temporary certificate of occupancy by the appropriate agency of local government; or

(ii) the issuance of the certificate of substantial completion; provided, however, that if the applicant is occupying the project and the commissioner determines that the issuance of either of the aforementioned documents is unduly delayed, the commissioner may declare a tentative occupancy date prior to the issuance of such document; and provided further that a tentative occupancy date may not predate the effective date of this Part.

(5) Company shall mean a company having received an HFA mortgage.

(b) An applicant who has obtained an HFA mortgage loan pursuant to the provisions of article 75 of the Mental Hygiene Law and article III of the Housing Finance Law to finance all or any part of a community facility for persons with developmental disabilities shall pay the charges due OPWDD in accordance with this Part promulgated pursuant to section 75.31 of said article 75 to cover the reasonable costs of services rendered by OPWDD, including inspection, regulation, supervision and audit.

(1) The charge for services rendered during the development period shall be 0.75 percent of the maximum mortgage commitment as of the day of the mortgage closing. Such charge shall be payable to OPWDD by the company upon requisition on or after the closing of the HFA mortgage.

(2) The charge for services rendered during the operational period shall be 0.05 percent per annum of the amount of the then maximum mortgage commitment less any grants received by HFA from the company as of the tentative occupancy date. Such charge shall be payable monthly to OPWDD by the company on the first day of the month following the aforesaid tentative occupancy date and on the first day of each and every succeeding month until said mortgage is paid.

(c) Within 30 days after the declaration of the tentative occupancy date of a project by the commissioner, the company shall open an operating escrow account in a bank which is a member of the Federal Reserve System or which is chartered by the State of New York pursuant to a corporate resolution in a form approved by the commissioner. The company shall furnish OPWDD with a certified copy of the resolution opening said account together with a letter of acceptance from the bank addressed to OPWDD in which it states that it is a member of the Federal Reserve System or that it is chartered by the State of New York.

(1) On the first day of the month following a notice of the declaration of the tentative occupancy date and on the first day of each and every month thereafter the company shall:

(i) pay to the New York State Housing Finance Agency the fees and charges set forth in the HFA mortgage;

(ii) pay to the OPWDD the charge for services set forth in paragraph (b)(2) of this section;

(iii) deposit in the operating escrow account a sufficient sum estimated by the commissioner, to cover one twelfth of the payments for reserves for replacement which will be required as of the tentative occupancy date;

(iv) deposit in the operating escrow account a sufficient sum as estimated by the commissioner to cover one twelfth of the annual interest charges on the HFA mortgage; and

(v) deposit in the operating escrow account a reserve for principal payments to become due after the issuance of bonds by the New York State Housing Finance Agency; said deposits to be one twelfth of 2.5 percent of the estimated net mortgage or such lesser percentage as may be approved by the commissioner.

(2) When the occupancy date is fixed there may be an adjustment made with respect to the payments and deposits made pursuant to paragraph (2) of this subdivision in accordance with the determination of the commissioner relating to said payments and deposits.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.10 Requirements for a Facilities Development Corporation loan

(a) A voluntary agency may apply to the commissioner for an FDC mortgage loan to meet any of the costs set forth in section 621.11 of this Part. The commissioner may deny such an application if the conditions set forth in this section are not met.

(b) A completed application must be submitted to the commissioner in the format and on forms prescribed by the commissioner. Such forms may include a capital schedule of proposed costs to be met by the FDC mortgage loan.

(c) A certificate of need application pursuant to Part 620 of this Title must have been completed, and approved by the commissioner.

(d) The voluntary agency must prepare and submit a certificate of incorporation in a form satisfactory to the commissioner for the corporation which will receive the FDC mortgage loan. The voluntary agency must demonstrate to the satisfaction of the commissioner that the corporation has obtained a certificate from the U.S. Internal Revenue Service that it is an exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code, and a statement of exemption from the New York State Department of Taxation and Finance.

(e) The voluntary agency must have, or demonstrate to the satisfaction of the commissioner that it will have as of the time the FDC loan is made:

(1) a fee simple interest in the real property; or a leasehold interest of at least 50 years in the real property; or a leasehold interest in the real property equal to or greater than the term of the FDC loan from a State, local governmental, or quasi-governmental entity or public benefit corporation; or an ownership interest in, and a leasehold estate in the premises as evidenced by a proprietary lease from an organization formed for the purpose of the cooperative ownership of real estate, for or upon which the loan will be used to finance or refinance the acquisition, construction, rehabilitation or improvement of a community facility; and

(2) title to any of the personal property which the commissioner determines must serve as additional security for the loan; and

(3) any necessary easements and rights-of-way free and clear of any convenants, restrictions, mortgages, easements and encumbrances determined sufficient by the commissioner to assure undisturbed use and possession for the purpose of operating the facility.

(f) The voluntary agency must execute any mortgage, security, financing or other agreement as may be required by the commissioner.

(g) At the discretion of the commissioner, the voluntary agency must execute, at the time the FDC loan is made or at any time during the term of such loan:

(1) an assignment to OPWDD of a portion of the facility's periodic rate or fee reimbursement which it receives as a result of services rendered to OPWDD and/or the New York State Medicaid program; or

(2) an assignment of all or a portion of any other periodic rate or fee reimbursement receivable by such voluntary agency as a result of services rendered to OPWDD and/or the New York State Medicaid program; or

(3) a general assignment or pledge of such voluntary agency's revenues, income or accounts receivable or proceeds thereof; or

(4) an agreement with OPWDD whereby OPWDD may recover on a monthly or other periodic basis a portion of the FDC loan; or

(5) any such combination of the above. Such assignments or agreements shall be made in the format and in such manner and amounts as shall be prescribed by the commissioner to meet the monthly or other periodic payment of all principals, interest, annual administrative fees and expenses, and any other amount due and owing the FDC by the voluntary agency under the FDC loan until the loan is satisfied.

(h) The use of FDC mortgage loan funds for the financing or refinancing of any construction, reconstruction, acquisition, rehabilitation or improvement of a community facility must be approved by the Director of the Division of the Budget.

(i) A voluntary agency must establish accounting and fiscal records in a manner approved by the commissioner to reflect the receipt and expenditure of FDC mortgage loan funds. A voluntary agency whose application under this section has been accepted must maintain such records in such a manner, and must make fiscal reports to the commissioner in such a manner and at such intervals as he may require.

(j) The commissioner shall have access to the books, records, and physical site of any facility for which FDC mortgage loan funds are received.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.11 Eligible costs for a Facilities Development Corporation mortgage loan

(a) A voluntary agency may use an FDC mortgage loan to meet only the following costs:

(1) the construction, acquisition, reconstruction, rehabilitation, or improvement of a facility;

(2) the acquisition of any interest in or option to purchase an interest in land, or the acquisition of, or an option to acquire, an ownership interest in, and a leasehold estate in the premises as evidenced by a proprietary lease from, an organization formed for the purpose of cooperative ownership of real estate and any improvements thereon, required as the site of the facility or for use in connection with the facility, and preparation of such site and land;

(3) feasibility studies, designs, surveys, plans, and specifications;

(4) program development costs;

(5) engineering and architectural services;

(6) indemnity and surety bonds and insurance premiums;

(7) equipment including machinery, fixtures, furnishings and other personal property required for the operation of the facility;

(8) costs incurred prior to the date of the first admission, during the period described in section 686.13(c)(4)(i) of this Chapter, including personal service, utilities, taxes, insurance, employee training, housekeeping, repair and maintenance, security, and administrative expenses;

(9) operational costs for up to three months from the date of the first admission, subject to the immediate repayment, at the discretion of the commissioner, of any or all of that portion of the loan principal attributable to such costs. For facilities for which the voluntary agency receives reimbursement rates or fees as a result of services rendered to OPWDD and/or the New York State Medicaid program, such repayment may be based on an assignment to OPWDD of the voluntary agency's rate or fee reimbursement for operational costs during such period, which may, at the discretion of the commissioner, be required from the voluntary agency in the format prescribed by the commissioner;

(10) costs and expenses in connection with the issuance of the bonds and notes by MCFFA to finance the facility, including: interest from the date of such issuance to the date such interest is paid by MCFFA from the payments made by the voluntary agency; related administrative and direct costs and fees of MCFFA, trustees, depositories and paying agents, not including the annual administrative fees charged by MCFFA; and fees and expenses of financial advisers and consultants in connection with such issuance;

(11) the cost of financing and refinancing any of the costs enumerated in this Part, including interest;

(12) the development period fee imposed by the commissioner pursuant to section 621.12(a) of this Part; and

(13) such other costs as the commissioner may determine to be reasonable and necessary; provided that such costs are allowable pursuant to the Medicare Provider Reimbursement Manual.

(b) In determining the amount of the costs to be met with an FDC mortgage loan, the foregoing costs shall be reduced by any portion of any State or Federal or other governmental assistance grant which the commissioner shall determine to be available to the voluntary agency to meet such costs; provided, however, that in the case of rate or fee reimbursement for up to the first three months of operation, such costs may be included in the amount of costs met with the FDC mortgage loan, subject to repayment as provided in paragraph (a)(9) of this section.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.12 Fees and charges in connection with a Facilities Development Corporation loan

(a) Charges for development period. The charge payable to OPWDD by the voluntary agency for services rendered in connection with an FDC mortgage loan from the inception of the project to, but not including, the initial occupancy date, shall be. 9 of one percent of the loan, payable on requisition on the date of the mortgage closing.

(b) Charges for operational period. The charge payable to OPWDD by the voluntary agency during the period from the occupancy date to the end of the loan term shall be an annual charge of.2 of one percent of the mortgage loan, payable on a monthly or other periodic basis pursuant to an assignment which shall be required from the voluntary agency to OPWDD to be made in the format prescribed by the commissioner. For facilities for which the voluntary agency receives reimbursement rates or fees as a result of services rendered to OPWDD and/or the New York State Medicaid program, such assignment may require the annual charge to be paid from the periodic payment of the voluntary agency's rate or fee reimbursement.

(c) MCFFA charges other than annual administrative charges. The charges imposed by MCFFA due to its cost and expenses in connection with the issuance of bonds and notes to finance the facility shall be payable to OPWDD by the voluntary agency on requisition on the date of the mortgage closing.

(d) MCFFA annual administrative charges. The annual administrative charges imposed by MCFFA shall be payable to OPWDD by the voluntary agency from the date of the mortgage loan closing, on a monthly or other periodic basis pursuant to an assignment which shall be required from the voluntary agency to OPWDD to be made in the format prescribed by the Commissioner. For facilities for which the voluntary agency receives reimbursement rates or fees as a result of services rendered to OPWDD and/or the New York State Medicaid program, such assignment may require the annual charge to be paid from the periodic payment of the voluntary agency's rate or fee reimbursement.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.13 Local governmental unit agreement/certification related to State aid, Housing Finance Agency mortgage loans, and Facilities Development Corporation mortgage loans

(a) Where the applicant for State aid is a voluntary agency (or proposed incorporators of the voluntary agency to be formed) there must be an agreement between the voluntary agency and the local governmental unit pursuant to section 41.15 (e) of the Mental Hygiene Law.

(b) Where the application is for an HFA or FDC mortgage loan, except in the case of FDC mortgage loans to the extent that they are for refinancing projects already certified under this section, there must be certification by the local governmental unit in the city or county in which the facility is located that the project is consistent with its plan for the provision of services for persons with developmental disabilities. In the case of HFA mortgage loan applications, such certification must be consistent with the provisions of section 75.19 of the Mental Hygiene Law.

(c) An applicant may appeal to the commissioner from the local governmental unit's denial of the agreement or certification required in subdivisions 621.13(a) and (b) of this section following a written request from the applicant as follows:

(1) within 30 days from the date that the applicant has been notified of the refusal of the local governmental unit to approve or certify; or

(2) within 30 days after the local governmental unit's failure to approve or certify.

(d) An appeal may be made only where the application for an agreement or certification to the local governmental unit by the applicant does not involve the direct expenditure of local tax levy funds.

(e) An appeal to the commissioner pursuant to subdivision (c) of this section must be in writing with a copy to the local governmental unit and to the local Developmental Disabilities Service Office (see glossary, section 621.17 of this Part).

(1) The written appeal must include the following information, if such information has been changed from that which was provided in the applicants approved certification of need application:

(i) the details of the program which the applicant has proposed;

(ii) the need for the program in the community; and

(iii) a showing that the applicant has the capacity to furnish the services. Specific detail must be shown that the applicant would be able to provide the place, the personnel and the organizational structure to effectuate the proposed program. The applicant must also show that it has the financial ability to provide sufficient funds to match State aid, where applicable.

(2) In addition, the written appeal must set forth facts showing the following:

(i) the applicant has submitted a written specific proposal to the local governmental unit for the project in a timely manner; and

(ii) a copy of the decision of the local governmental unit to refuse to agree to the proposal or sufficient facts to show that the local governmental unit has failed to approve or certify the applicant's project within 30 days of submittal.

(3) Upon receipt of the written request for an appeal, OPWDD will notify the local governmental unit of this request.

(i) Within 30 days of the date of receipt of such notification from OPWDD, the local governmental unit may reply in writing to OPWDD regarding the applicant's request for an appeal. In its reply the local governmental unit shall set forth the following facts:

(a) a substantial basis for its decision not to approve or certify; or

(b) the reason for its failure to approve or certify.

The local governmental unit shall forward a copy of its reply, personally or by mail, to the applicant.

(ii) Every effort shall be made by OPWDD to conciliate the applicant and the local governmental unit. Informal sessions may be arranged for a discussion of the issues and an attempt to resolve the appeal without further formal procedure.

(4) No later than 15 days of the date OPWDD receives the local governmental unit's reply to the applicant's request for an appeal, or if no reply is received, the commissioner shall:

(i) dismiss the appeal if the appeal is clearly without merit based on the facts provided to the commissioner by the applicant and/or the local governmental unit; or

(ii) schedule a hearing, if a substantial basis for appeal has been presented by the applicant, and the efforts of OPWDD at conciliation have failed.

(5) If a hearing is scheduled, it shall be held before the commissioner at a time or times fixed by the commissioner.

(i) Written notice of the hearing shall be given to the applicant, the local governmental unit and such other persons as the commissioner may deem advisable.

(ii) The hearing shall not be adjudicatory in nature and the rules applying to quasi-judicial hearings shall not apply. The applicant, the representatives of the local governmental unit, appropriate staff members of OPWDD and other interested individuals may present their views to the commissioner on the merits of the appeal.

(iii) Whenever possible, the commissioner shall designate a place in the county seat of the county from which the appeal has arisen for the conduct of the hearing.

(6) Within 15 days after the date that the hearing has closed, a decision shall be made by the commissioner on whether the appeal is meritorious. The commissioner shall notify the local governmental unit and the applicant of his decision. In every case where the appeal has been found meritorious, the requirement for local governmental unit agreement or certification shall be deemed to have been satisfied.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.14 Assurances from the applicant

In addition to any other requirements imposed by law, each State aid grant, HFA mortgage loan and FDC mortgage loan shall be subject to the condition that the applicant will furnish and comply with the following assurances and conditions.

(a) That the commissioner's approval of the final working drawings and specifications which conform to the general standards of construction and equipment, as prescribed in the commissioner's regulations will be obtained before the project is advertised or placed on the market for bidding.

(b) That the following conditions and provisions will be included in all construction contracts:

(1) A provision that the contractor has complied with statutory requirements relating to noncollusion in bids and proposals.

(2) When deemed necessary by the commissioner, the contractor shall furnish performance and payment bonds, each of which shall be in the full amount of the contract price. The contractor shall maintain, during the life of the contract, adequate fire, workers' compensation, liability and property damage insurance.

(3) A provision that representatives of the commissioner will have access at all reasonable times to work whenever it is in preparation or progress and the contractor shall provide proper facilities for each access and inspection.

(c) An applicant which has received State aid, an HFA mortgage loan, or an FDC mortgage loan for capital construction of a facility or other eligible costs shall:

(1) Operate the community program described in the application, in the facility constructed, acquired, reconstructed, rehabilitated, improved, financed, or refinanced with State aid for a period of 20 years from the date of completion of construction or until any mortgage obtained by the applicant from the New York State Housing Finance Agency or any FDC mortgage loan has been satisfied, whichever occurs later, and will make no change in the nature of the program or the status or ownership of the facility within the aforesaid period without the prior written approval of the commissioner and, where an HFA mortgage loan has been obtained, the written approval of the New York State Housing Finance Agency. In the event the applicant fails to operate the community program for the aforesaid period, OPWDD in addition to any other legal remedies it may have and subject to any rights of the New York State Housing Finance Agency or the Facilities Development Corporation pursuant to any mortgage it may hold on the facility, shall have the right to possession and occupancy, without any charge or fee therefore, of the facility constructed with State aid or for which an FDC mortgage loan was obtained for its financing, refinancing, construction, acquisition, reconstruction, rehabilitation, or improvement, for the unexpired term during which the applicant has agreed to operate said facility. If OPWDD exercises the foregoing right, its possession and occupancy shall be under the following terms and conditions:

(i) If OPWDD is obligated to make any payment on any mortgage, lien, judgment or other encumbrance on the facility, then the amount of such payments shall be an obligation of the applicant due and owing to OPWDD.

(ii) OPWDD shall be responsible for all maintenance except for repairs to the physical structure of the facility. If OPWDD is obliged to make such structural repairs then the amounts so expended shall become and be a obligation of the applicant due and owing to OPWDD.

(iii) Notwithstanding any of the provisions contained herein, OPWDD shall be entitled to recover an amount equal to five percent of any State aid granted for capital costs for the construction of the facility for each year of the unexpired first 20 years of the term during which the applicant has agreed to operate said facility; and cause to be recovered on a monthly or other periodic basis, a portion of the FDC mortgage loan until the loan has been satisfied, in such manner and in such amounts as shall be set forth in agreements between the applicant and OPWDD to be made in the format prescribed by the commissioner; and the total amount thereof shall become and be an obligation of the applicant due and owing to OPWDD.

(iv) Any obligation of the applicant as set forth in the foregoing paragraphs of this subdivision shall become and be a lien on the facility in favor of OPWDD as soon as said obligation is incurred; provided, however, that where there is an unsatisfied mortgage held by the New York State Housing Finance Agency on the facility, the said obligation shall become and be a lien on the facility when said mortgage is satisfied. OPWDD may file proof of such lien with the clerk of the county wherein such facility is located. Such lien may be filed prior to the satisfaction of any HFA mortgage.

(v) That the applicant will obtain from any agency which operates a program in the facility, as a condition of such operation written agreement to perform and operate in accordance with the provisions of this section.

(2) Make no change in the general nature of the program conducted at the facility or any change in the status or ownership of the facility for a period of 20 years from the date of completion of the facility or until the mortgage obtained by the applicant from the New York State Housing Finance Agency or the FDC mortgage loan has been satisfied, and in the case of a HFA mortgage loan, the prior written approval of the New York State Housing Finance Agency. In the event the applicant fails to operate the community program for a period of 20 years from the date of completion of construction or until the mortgage obtained by the applicant from the New York State Housing Finance Agency or the FDC mortgage loan has been satisfied, whichever occurs later, OPWDD, subject to any rights of the New York State Housing Finance Agency or the Facilities Development Corporation pursuant to any mortgage it may hold on the facility, shall have the right to possession and occupancy, without any charge or fee therefor, of the facility constructed with State aid or for which an FDC mortgage loan was obtained for its financing, refinancing, construction, acquisition, reconstruction, rehabilitation, or improvement for the unexpired term during which the applicant has agreed to operate said facility. OPWDD shall further be entitled to recover an amount equal to five percent of the State aid grant for capital costs for the construction of the facility for each year of the unexpired first 20 years of the term during which the applicant has agreed to operate said facility, or to cause to be recovered on a monthly or other periodic basis, a portion of the FDC mortgage loan for the unexpired term during which the applicant has agreed to operate the facility, until the loan is satisfied.

(3) No applicant receiving State aid or an HFA mortgage loan for capital construction of a facility shall rent or lease such facility or any part thereof without having first received the prior written approval of the commissioner.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.15 Release of the applicant

(a) The commissioner may, within the 20-year period after completion of construction of the facility, or within the period during which the applicant agreed to operate the facility, release the applicant, in whole or in part, from its obligation to continue the operation of the facility as an OPWDD certified facility as set forth in its application; provided, however, that if the facility is subject to an HFA mortgage said release shall require the written concurrence of the New York State Housing Finance Agency.

(b) The decision to make such release shall take into consideration the extent to which:

(1) assurance is received that the facility will be devoted by the applicant to another public use which will promote the purposes contained in articles 13 and 41 of the Mental Hygiene Law; or

(2) There are reasonable assurances that for the remainder of the 20-year period, or the period during which the applicant agreed to operate the facility, other facilities not previously utilized for the care of persons with developmental disabilities will be so utilized and are substantially equivalent in nature and extent for such purposes.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.16 Conflict of interest

(a) No full-time officer or employee of the applicant or of the State, or any firm, organization, corporation, or partnership which such officer or employee owns, controls, or directs shall receive funds reimbursed for capital costs directly, or indirectly for payment for services provided in connection with planning, design, construction, or equipping of the project, or in connection with site acquisition.

(b) Upon written request by the applicant, the commission may waive the provisions of subdivision (a) of this section by giving prior written approval, after full disclosure of all relevant facts and circumstances.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 621.17 Glossary

(a) Applicant. Refers to a local government, voluntary agency, company or corporation eligible to apply for a State aid grant or an HFA mortgage loan pursuant to article 41 and/or article 75 of the Mental Hygiene Law.

(b) Capital costs. The costs of an applicant for a State aid grant with respect to the acquisition of real property, design, construction, reconstruction, rehabilitation and improvement, original furnishings and equipment, site development and appurtenances of a local facility as defined in article 41 of the Mental Hygiene Law. Such costs associated with HFA mortgage loans are referred to as "project costs" pursuant to article 75 of the Mental Hygiene Law.

(d) Community facility. A place located in the community where programs and services for the persons with developmental disabilities are provided subject to certification by OPWDD or other appropriate certifying body.

(e) Company. A community company duly incorporated pursuant to the provisions of the Not-for-Profit Corporation Law and article 75 of the Mental Hygiene Law for the purpose of providing care, treatment, training, education and residential services for persons with developmental disabilities and, such facilities as may be incidental or appurtenant thereto.

(f) Developmental Disabilities Service Office (B/DDSO). The local administrative unit, responsible to the Division of Program Operations, that has major responsibility for the planning and development of community residential and other program services. The B/DDSO is also responsible for coordinating the service delivery system within a particular service area, planning with community and provider agencies, and ensuring that specific client placement and program plans and provider training programs are implemented. In New York City, this unit is called the Borough Developmental Services Office (BDSO); elsewhere in the State it is called the Developmental Disabilities Service Office (DDSO).

(g) Local government. A county, except a county within the City of New York, and the City of New York.

(h) Local governmental unit. The unit of local government given authority in accordance with the Mental Hygiene Law by local government to provide local or unified services for persons with developmental disabilities.

(i) Voluntary agency. A corporation organized or existing pursuant to the Not-for-Profit Corporation Law and article 41 of the Mental Hygiene Law for the purpose of providing local services for persons with developmental disabilities.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 622 Implementation of State Environmental Quality Review Act

N.Y. Comp. Codes R. & Regs. Tit. 14 § 622.99 Glossary

(a) Action. Any activity of the OPWDD, except an excluded or exempt action as defined in this Part, including, without limitation:

(1) projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure, that:

(i) are directly undertaken by OPWDD; or

(ii) involve funding by OPWDD; or

(iii) require one or more new or modified approvals from OPWDD or other governmental body(ies).

(2) OPWDD planning and policymaking activities that may affect the environment and commit the agency to a definite course of future decisions;

(3) adoption of OPWDD rules, regulations and procedures, including local laws, codes, ordinances, executive orders and resolutions that may affect the environment; and

(4) any combinations of the above.

(b) Action, ministerial. An action performed upon a given statement of facts in a prescribed manner imposed by law without the exercise of any judgment or discretion as to the propriety of the action, ( e.g., the granting of a hearing on the part of parties involved in a site selection dispute pursuant to the provisions of article 41.34 of the Mental Hygiene Law), although such law may require, in some degree, a construction of its language or intent.

(c) Analysis, environmental. An agency evaluation of the short-and long-term, primary and secondary environmental effects of an action, with particular attention to the same areas of environmental impacts as would be contained in an environmental impact statement. It is the means by which the OPWDD determines whether an action under consideration may or will not have a significant effect on the environment.

(d) Applicant. Any party making an application or other request for OPWDD action.

(e) Application, complete. An application which, in the judgment of the governmental body, contains sufficient information on which to make a decision whether or not to approve or tentatively approve an action proposed by the applicant. In the case of an action involving an applicant, it shall include the filing of all applications to the governmental body associated with the proposed action that are required pursuant to any statute, rule or regulation unless, in the judgment of the OPWDD, such filing is not feasible or appropriate given the nature of the action or the failure to file all such applications at the same time will not preclude adequate reviews by the OPWDD.

(f) Area, environmentally sensitive. The following designated classifications identify those geographical sites where the environmental impact is considered in all cases to be significant.

(1) Critical environmental area. A specific geographic area designated by a state or local governmental body, having exceptional or unique characteristics that make the area environmentally important. Any unlisted action located in a critical environmental area must be treated, as a Type I action by any involved governmental body.

(2) A building, site, or district listed on the State or National Registers of Historic Places or any site/facility occurring wholly or partially within or substantially contiguous to any historical building, structure, facility, site or district or prehistoric site. Projects in such areas must be reviewed and approved by the State Office of Parks, Recreation and Historic Preservation.

(3) An agricultural district certified pursuant to Agriculture and Markets Law, article 25-AA, sections 303 and 304. Nonagricultural use of land in these districts must be approved by the State Department of Agriculture and Markets.

(4) A Department of Environmental Conservation designated wetland.

(5) A 100-year flood plain.

(6) A site in or contiguous to any publicly owned or operated parkland, recreation area or designated open space, including any site on the Register of National Natural Landmarks.

(7) Any properly determined to contain Natural Heritage Program elements, and/or NYS federally designated threatened or endangered species.

(g) Certification, standards of. Those criteria which specify the basis of documenting compliance for the purposes of issuing an operating certificate. The basis of documentation may include facility specific record; specified forms or reports; specified contents of records, reports or forms, and/or other means of assessing compliance such as interviews with persons served, employees or volunteers, and/or onsite observation of activities and the environment.

(h) Commissioner. The Commissioner of the Office for People With Developmental Disabilities.

(i) Declaration, negative. A written statement made by the OPWDD after conducting environmental analysis of an action which announces that it has been determined that the action will not have a significant effect on the environment.

(j) Environment. The physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution or growth, and existing community or neighborhood character.

(k) OPWDD. The Office for People With Developmental Disabilities.

(l) Principles of compliance. Those requirements with which an applicant must comply, but against which the applicant will not be routinely surveyed for recertification purposes. However, evidence of failure to comply with the principles may be the basis for decertification in accordance with article 16 of the Mental Hygiene Law.

(m) Statement, environmental impact. A written document prepared in accordance with 6 NYCRR 617.6 and this Part. An environmental impact statement may either be a "draft" or a "final."

(n) Type I action. An action contained in either 6 NYCRR 617.12, or section 622.5 of this Part, that is listed as likely to require the preparation of an environmental impact statement.

(o) Type II action. An action listed in either 6 NYCRR 617.12 that the Commissioner of the Department of Environmental Conservation has found will not have a significant effect on the environment, or section 622.5 of this Part that the OPWDD has determined will not have a significant effect on the environment.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 624 Reportable Incidents And Notable Occurrences

N.Y. Comp. Codes R. & Regs. Tit. 14 § 624.1 Applicability

(a) This Part is applicable to all facilities and programs that are operated, certified, sponsored or funded by OPWDD for the provision of services to persons with developmental disabilities.

Note: Use of the term "agency" throughout the regulation refers to OPWDD Development Disabilities State Operations Offices (DDSOOs, see glossary, section 624.20) as well as other non-state agencies (see glossary, section 624.20) and sponsoring agencies (see glossary, section 624.20) that sponsor family care homes.

(b) Intermediate Care Facilities (see Part 681 of this Title), including state operated developmental centers, must also comply with the requirements of 42 CFR 483 . In some instances, these federal requirements are more stringent than the requirements of this Part.

(c) The requirements of this Part apply to events and situations that are under the auspices (see glossary, section 624.20) of an agency. Note that requirements concerning events an situations that are not under the auspices of an agency are set forth in Part 625 of this Title.

(d) Programs that are certified under section 16.03 (a)(4) or 16.03 (a)(5) of the Mental Hygiene Law and are funded by OPWDD, but that are not operated by OPWDD, are not considered to be "facilities and programs that are certified or operated by OPWDD" as that phrase is used throughout this Part. The requirements of Part 624 apply to reportable incidents and notable occurrences that are under the auspices (see glossary, section 624.20 of this Part) of such programs, except that such programs are not required to report incidents to the Justice Center's Vulnerable Persons' Central Register (VPCR).

(e) The requirements of Part 624 as revised effective June 30, 2013 are applicable to incidents that occur on and after June 30, 2013. Incidents that occurred prior to June 30, 2013 are subject to the requirements of Part 624 that were in effect at the time the incidents occurred. Note that the requirements of Part 624 as revised effective June 30, 2013 include provisions concerning the release of records pertaining to allegations of abuse that occurred prior to June 30, 2013 (See Section 624.8).

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 624.2 Background and Intent

(a) It is the intent of this Part to require an incident management system, including the reporting, investigation, review, correction, and monitoring of certain events or situations, in order to protect individuals receiving services (to the extent possible) from harm; ensure that individuals are free from abuse and neglect; and to enhance the quality of their services and care.

(b) A primary function of the reporting of certain events or situations is to enable a governing body (see glossary, section 624.20), executives, administrators, and supervisors to become aware of problems; to take corrective measures; and to minimize the potential for recurrence of the same or similar events or situations. The prompt reporting of these events and situations can ensure that immediate steps are taken to protect persons receiving services from being exposed to the same or similar risk.

(c) The reporting of certain events or situations in an orderly and uniform manner facilitates identification of trends, whether within a facility or class of facilities, by one or more agencies, or on a statewide basis, which ultimately allows for the development and implementation of preventive strategies.

(d) It is the intent of this Part to require a process whereby those events or situations that endanger a person's wellbeing while under the auspices of an agency, which are defined in section 624.3 of this Part as "reportable incidents," and in section 624.4 as "notable occurrences," are reported, investigated, and reviewed, and protective, corrective, and remedial actions are taken as necessary.

(e) It is not the intent of this Part to mandate that every potentially harmful event or situation attributable to or involving a person receiving services while under the auspices of an agency, be recorded as a reportable incident or notable occurrence in accordance with this Part.

It is the responsibility of the agency to determine how events or situations involving persons receiving services that are under the auspices of the agency or sponsoring agency, other than reportable incidents and notable occurrences are to be documented, processed, corrected, monitored, and analyzed for trends through the development of policies and procedures that are in compliance with 14 NYCRR, and to develop a mechanism for review to ensure compliance with such policies and procedures.

(f) It is the intent of this Part to require a process whereby the governing body ensures the effectiveness of the identification, recording, investigation, review, and corrective actions with regard to events or situations involving persons receiving services referenced within this Part. This must be achieved through the establishment of the governing body's own protocol, which may include, but not be limited to, regular review of the minutes of the incident review committee and periodic attendance at that committee's meetings.

(g) It is the intent of this Part to hold the governing body and the chief executive officer (see glossary, section 624.20) responsible for the management of incidents. However, the chief executive officer may designate staff members to assume specified responsibilities to facilitate the day to day process, and these designations must be set forth in writing in agency policies and procedures and made known to all staff and others with a need to know.

(h) Though failure on the part of an agency to provide appropriate services may not meet the definition of an incident or notable occurrence as defined in sections 624.3 or 624.4 of this Part, OPWDD has, pursuant to statute, the authority to investigate or cause the investigation of conduct, performance, and/or alleged neglect of duty.

(i) It is the intent of this Part to require a process for facilities that is in full compliance with the provisions of section 29.29 of the Mental Hygiene Law.

(j) Facilities and programs that are certified or operated by OPWDD, except those programs that are certified under paragraph 16.03(a)(4) or 16.03(a)(5) of the Mental Hygiene Law, are required to comply with relevant provisions of Article 20 of the Executive Law (Protection of People with Special Needs) and Article 11 of the Social Services Law (Protection of People with Special Needs), and to implement regulations promulgated by the Justice Center for the Protection of People with Special Needs (Justice Center).

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 624.7 Incident Review Committee (IRC)

(a) Every agency must have one or more incident review committees to review and monitor reportable incidents and notable occurrences that occur to people receiving services from the agency The agency's organizational structure and its own policies will determine the number of committees needed.

(b) An IRC must review reportable incidents and notable occurrences to:

(1) ascertain that reportable incidents and notable occurrences were reported, managed, investigated, and documented consistent with the provisions of this Part and with agency policies and procedures, and to make written recommendations to the appropriate staff and/or the chief executive officer to correct, improve, or eliminate inconsistencies;

(2) ascertain that necessary and appropriate corrective, preventive, remedial, and/or disciplinary action has been taken to protect persons receiving services from further harm, to safeguard against the recurrence of similar reportable incidents and notable occurrences, and to make written recommendations to the chief executive officer to correct, improve, or eliminate inconsistencies;

(3) ascertain if further investigation or if additional corrective, preventive, remedial, and/or disciplinary action is necessary, and if so, to make appropriate written recommendations to the chief executive officer relative to the reportable incident or notable occurrence;

(4) identify trends in reportable incidents and notable occurrences (e.g., by type, person, site, employee involvement, time, date, circumstances, etc.), and to recommend appropriate corrective, preventive, remedial, and/or disciplinary action to the chief executive officer to safeguard against such recurring situations or reportable incidents and notable occurrences; and

(5) ascertain and ensure the adequacy of the agency's reporting and review practices, including the monitoring of the implementation of approved recommendations for corrective, preventive, and remedial action.

(1) meet as determined by agency policy, but no less frequently than on a quarterly basis and always within one month of the report of a reportable incident or serious notable occurrence, or sooner should the circumstances so warrant. The IRC shall meet as necessary to meet the timeframes established for submission of a final report to the Justice Center for reportable incidents, if required;

(2) review and monitor all minor notable occurrences that are reported, which may be done by a sub-committee of the IRC or by individual assignment to members of the IRC, and maintain a record of such incident/occurrence review, recommendations, and/or actions taken in such a manner as to provide for tracking and trending;

(3) review and monitor all reportable incidents and/or serious notable occurrences that are reported;

(4) review and monitor investigatory procedures, but shall not perform the routine investigation of reportable incidents or notable occurrences;

(5) make written recommendations to appropriate staff to eliminate or minimize similar reportable incidents and/or notable occurrences in the future, and/or to improve investigatory or other procedures;

(6) make written recommendations to the chief executive officer on changes in agency policy or procedures and to improve conditions contributing to the reportable incidents and/or notable occurrences reviewed;

(7) forward findings and recommendations to the chief executive officer within two weeks of meeting;

(8) provide documentation that all reports of reportable incidents and serious notable occurrences have been reviewed by the committee and that results and recommendations have been conveyed to appropriate agency executives and others with a need to know;

(9) monitor actions taken on any and all recommendations made and advise the chief executive officer when there is a problem;

(10) monitor trends of other events or situations attributable to a person receiving services which may be potentially harmful, but do not meet the definition of being a reportable incident or notable occurrence (see subdivision 624.2(e)). This may be done by the full committee or a member of a subcommittee reporting to the full committee;

(11) in accordance with agency policy, report periodically, but at least annually, to the chief executive officer, chief agency executives, the governing body, and OPWDD concerning the committee's general monitoring functions; general identified trends in reportable incidents and notable occurrences; and corrective, preventive, remedial and/or disciplinary action pertaining to identified trends; and

(12) interact with the governing body and comply with the policies in relation to the review and monitoring of all reportable incidents and notable occurrences.

(d) For reportable incidents of abuse and neglect in facilities and programs that are certified or operated by OPWDD, an incident will not be considered closed by an IRC until the agency receives written notification from the Justice Center which specifies that it has accepted an investigation conducted by the agency (or by OPWDD) or, if the Justice Center conducted the investigation, when the Justice Center notifies the agency that the incident is closed.

Note: The Justice Center may amend findings made by an agency or OPWDD. Findings made by the Justice Center are considered final.

(e) Role of the IRC when investigations are conducted by the Central Office of OPWDD or the Justice Center. Notwithstanding any other provision of this Part, when an investigation of an incident or occurrence is conducted by the Central Office of OPWDD or the Justice Center:

(1) The IRC role in reviewing and monitoring the particular incident or occurrence is limited to matters involving compliance with the reporting and notification requirements of this Part, protective and remedial actions taken (except disciplinary actions concerning services operated by OPWDD), operational concerns, and the quality of services provided.

(2) The finding (of the report of abuse or neglect) of substantiated or unsubstantiated must be made by the Central Office of OPWDD or the Justice Center.

(3) Concerning services operated by OPWDD:

(i) The IRC must monitor all actions taken to implement recommendations made by the Central Office of OPWDD or the Justice Center, except recommendations for disciplinary action.

(ii) The IRC for state-operated services must not review or monitor disciplinary action recommendations made by the Central Office of OPWDD or the Justice Center.

(4) Concerning facilities and programs that are not operated by OPWDD, including non-certified programs and programs certified under section 16.03 (a)(4) or 16.03 (a)(5) of the Mental Hygiene Law, the IRC must monitor all actions taken to implement recommendations made by the Central Office of OPWDD or the Justice Center.

(f) Organization and membership of the IRC.

(1) A committee or committees may be established to meet the organizational needs of an agency (e.g., on an agency-wide basis, for a certified class of facilities, for a grouping of certified classes of facilities, by types of services provided, etc.). An agency may establish its own committee or committees and/or may meet the requirements of this section in several other ways, either concerning all operations of the committee or for specific incidents/occurrences or types of incidents/occurrences.

(i) An agency may coordinate with other agencies in the establishment of a shared committee.

(ii) An agency may also coordinate with a different agency to use the other agency's IRC.

(iii) An alternate acceptable committee review arrangement may be established with the approval of OPWDD.

(2) Committee members must be appointed by the chief executive officer. In the case of a shared committee, each chief executive officer must appoint committee members and approve the shared committee membership arrangement.

(3) An IRC may have other responsibilities in addition to specified responsibilities related to reportable incidents and notable occurrences.

(4) Membership of an IRC must include:

(i) except for state-operated services, a member of the governing body;

(ii) for state-operated services, a high-level administrator (note: this cannot be the Director);

(iii) at least two professional staff, including but not limited to, licensed clinicians, such as occupational, physical, and speech therapists, social workers, psychologists, and nurses; a behavioral intervention specialist (BIS, see subdivision 633.16(b)); and others with primary responsibility for developing and/or monitoring individuals' plans of care, such as developmental and habilitation specialists or a QIDP. At least one of the professional staff must be a licensed health care practitioner (e.g. physician, physician's assistant, nurse practitioner, or registered nurse).

(iv) other staff, including administrative staff, as deemed necessary by the agency to achieve the purposes of the committee pursuant to this section;

(v) at least one direct support professional (except for agencies that do not have direct support professionals);

(vi) at least one individual receiving services;

(vii) at least one representative of advocacy organizations (e.g. self-advocacy, family, or other advocacy organizations); and

(viii) the participation of a psychologist on the committee is recommended.

(5) In the event that an agency is unable to obtain the members required by subparagraphs (i) and (v) - (viii), the agency must document its periodic efforts to obtain the specified members.

(6) Membership limitations.

(i) The chief executive officer of the agency must not serve as a member of the committee, but may be consulted by the committee in its deliberations.

(ii) The administrator of a class or classes of facilities or a group or groups of services may be designated as a member only if the committee is an agency-wide or multi-program committee. If he or she is not a member, an administrator may be consulted by the committee in its deliberations.

(7) Case-specific requirements.

(i) There must be representation by someone from or with knowledge of the program or service within the agency where the event under discussion occurred, or by someone who is familiar with the person(s) involved.

(ii) Restrictions on review of specific incidents or allegations of abuse.

(a) Any committee member who recognizes a potential conflict of interest in his or her assignment must report this information to the committee and recuse him or herself from participating in committee review of the incident or occurrence in question.

(b) No committee member may participate in the review of any reportable incident or notable occurrence in which he or she was directly involved, in which his or her testimony is incorporated, in which his or her spouse, domestic partner, or other immediate family member was directly involved, or which he or she investigated or participated in the investigation. Such members may, however, participate in committee deliberation regarding appropriate corrective, preventive, or remedial action.

(c) For reportable incidents and serious notable occurrences, no committee member may participate in the review of an investigation in which his or her spouse, domestic partner, or immediate family member provides supervision to the program where the incident took place or supervised directly involved parties.

(d) No committee member may participate in the review of a reportable incident or serious notable occurrence, if such committee member is the immediate supervisor of staff directly involved in the event or situation. Such member may, however, participate in committee deliberation regarding appropriate corrective, preventive, or remedial action.

(8) Members of the committee must be trained in confidentiality laws and regulations, and shall comply with section 74 of the public officers law.

(g) Minutes. The chairperson of an incident review committee must ensure that minutes are kept for all meetings.

(1) For reportable incidents and serious notable occurrences, the portion of the minutes that discuss matters concerning the specific event or situation must be entered into IRMA within three weeks of the meeting.

(2) Minutes addressing the review of specific reportable incidents and/or serious notable occurrences must clearly state the filing number or identification code of the report (if used), the person's full name and identification number (if used), and provide a brief summary of the situation (including date, location, and type) that caused the report to be generated, committee findings (including reclassification of event, if applicable), and recommendations and actions taken on the part of the agency as a result of such recommendations. Full names of all parties involved must be recorded (not initials).

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 624.8 Release of records

(a) Policies and procedures. Agencies must have policies and procedures concerning the process for requesting the release of records, including but not limited to identifying appropriate staff who are authorized to receive requests and those who are authorized to release records.

(b) Eligible requestors. Persons receiving services or who formerly received services, and guardians, parents, spouses, adult children, or adult siblings of such persons, pursuant to paragraph (a)(6) of section 33.16 of the Mental Hygiene Law, are eligible to request the release of records as established by this section, subject to the following restrictions:

(1) In the event that an otherwise eligible requestor is an alleged abuser, such requestor is not eligible to receive any records or documents pertaining to the specific allegation or investigation of the event or situation in which he or she was the targeted alleged abuser, regardless of the conclusion.

(2) If the person receiving services or who formerly received services is a capable adult and objects to the provision of records and/or documents to an otherwise eligible requestor, such requestor is not eligible to receive those records or documents.

(1) Agencies are required to release all records and documents pertaining to allegations and investigations into abuse as defined in applicable OPWDD regulations in effect at the time the allegation occurred under the auspices (see section 624.20 of this Part) of the agency or sponsoring agency to eligible requestors who make a request in accordance with the provisions of this section.

(2) Agencies are required to release records and documents pertaining to allegations of abuse which occurred or were discovered on or after May 5, 2007, regardless of the date of the submission of the written request.

(3) Agencies are required to release records and documents pertaining to allegations of abuse which occurred or were discovered on or after January 1, 2003 but prior to May 5, 2007, if the written request is submitted on or before December 31, 2012.

(d) Records subject to release concerning reportable incidents that occurred on or after June 30, 2013. Agencies are required to release all records and documents pertaining to reportable incidents to eligible requestors who make a request in accordance with the provisions of this section.

(e) Procedures. Eligible requestors shall submit a written request to staff designated by agency policy/procedures. If the request is made prior to the closure of the incident, the parties specified by agency policy/procedures must provide the requested records no later than 21 days after the closure of the incident. If the request is made at or subsequent to the closure of the incident, the agency must provide the requested records no later than 21 days after the request is made. The written request must specify the records that are requested.

Note: The criteria for closure of an incident are in subdivision 624.5(o) of this Part.

(f) Redaction of records.

(1) Prior to the release of records, agencies must redact the names of employees who are involved in the incident or the investigation or who are interviewed as a part of the investigation, persons receiving services (or who formerly received services), and any information tending to identify such employees or persons. For the purpose of this section, "employee" has the same meaning as in section 624.6(f)(10) of this Part. Redaction may be waived if the employee or person authorizes disclosure, unless redaction of the specific information is necessary because it tends to identity another employee or person who has not authorized disclosure or for another reason specified in this subdivision.

(2) In addition, if any records that are subject to release identify a particular party as having made a child abuse or maltreatment report to the Statewide Central Register of Child Abuse and Maltreatment (SCR), contacted the SCR, or otherwise cooperated in a child abuse/maltreatment investigation, that name as well as any information tending to identify the party must be redacted.

(g) Cover letter and dissemination restrictions. The release of records to recipients must be in accordance with the following:

(1) The release of records must be accompanied by a cover letter to the recipient which includes the following statement: "pursuant to section 33.25 of the Mental Hygiene Law, the enclosed records and reports shall not be further disseminated, except that you may share the report with:

(i) a health care provider;

(ii) a behavioral health care provider;

(iii) law enforcement, if you believe a crime has been committed; or

(iv) your attorney."

(2) Pursuant to New York State law, the recipient, parties with whom the recipient shared records, or the individual receiving services may use records and documents released in accordance with this section in any legal action or proceeding brought by or on behalf of the individual receiving services.

(h) Documentation.

(1) The written request for the release of records must be maintained and the time the request was received must be documented.

(2) A copy of the redacted records that were released must be maintained and the time the records were provided must be documented.

(i) Administrative appeal process - denial of requested records/documents.

(1) A requestor denied access to the records and documents requested pursuant to this section may appeal, in writing, such denial to the incident records appeals officer designated by OPWDD.

(2) Upon receipt of the appeal, the agency issuing the denial will be notified of the appeal and given an opportunity to submit relevant information to the incident records appeals officer, including the reasons for denial, within 10 business days of the receipt of such appeal. The incident records appeals officer may also request additional information from the requestor as may be necessary to resolve the appeal.

(3) Within 10 business days of the receipt of complete information, the incident records appeals officer will make a determination about whether the requested records and/or documents should be released. The incident records appeals officer will issue his or her determination with an explanation of the reasons for the determination to the requestor and the agency. If so directed by the incident records appeals officer, the agency must provide the requested records and/or documents to the requestor.

(j) Note that records maintained by the agency may also be available under section 496 of the social services law to "other persons named in the report" as defined in section 488 of the social services law.

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

Part 625 Events And Situations That Are Not Under The Auspices Of An Agency

N.Y. Comp. Codes R. & Regs. Tit. 14 § 625.1 Applicability

(a) This Part is applicable to all facilities and programs that are operated, certified, or funded by OPWDD (including family care homes) for the provision of services to individuals with developmental disabilities.

(b) Requirements concerning events and situations that are not under the auspices of an agency are found in this Part. (Note that requirements concerning events and situations that are under the auspices of an agency are in Part 624 of this Title.)

(d) Intermediate Care Facilities (ICFs, see Part 681 of this Title), including state operated developmental centers, must also comply with the requirements of 42 CFR Part 483 . Events and situations involving ICF residents that meet the definitions of abuse and other violations under the federal regulation, but do not occur under the auspices of the ICF, must be reported and thoroughly investigated in accordance with federal requirements in 42 CFR Part 483 that are more stringent than requirements of this Part.

(e) Programs that are certified under section 16.03 (a)(4) or 16.03 (a)(5) of the Mental Hygiene Law and are funded by OPWDD, but that are not operated by OPWDD, are required to report and address events and situations that are not under the auspices of an agency in accordance with this Part. Such certified programs are not, however, required to report deaths to the Justice Center.

History

Adopted New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 625.3 Agency involvement in events or situations that are not under the auspices of an agency

(a) If an agency becomes aware of an event or situation involving an individual receiving services from the agency, in which the event or situation is not under the auspices of the agency (see subdivision 625.2(a)), the agency must respond to the event or situation as follows:

(1) If the event or situation meets one of the definitions in sections 624.3 or 624.4 of this Title (reportable incidents and notable occurrences) and occurred under the auspices of another agency subject to the requirements of Part 624 of this Title:

(i) The agency must comply with the requirements of subdivision 624.5(r) of this Title. This includes the requirement to document the event or situation and report the situation to the agency under whose auspices the event or situation occurred.

(ii) Note that mandated reporters (e.g. custodians) are required to make reports to the Vulnerable Persons' Central Register (VPCR) pursuant to section 491 of the social services law. This means that mandated reporters at the discovering agency must report to the VPCR upon discovery of a reportable incident that occurred in another program or facility that is certified or operated by OWPDD.

(2) If the event or situation meets one of the definitions in sections 624.3 or 624.4 of this Title and occurred in a facility or service setting subject to the regulatory oversight of another State Agency (e.g. school, hospital), the agency must document the event or situation and shall report the situation to the management of the facility or service setting.

(3) The agency must intervene as specified in subdivision (b) of this section if it has reason to believe (e.g., a report or complaint is made to the agency, etc.) that the event or situation meets the definition of physical, sexual, or emotional abuse; active, passive, or self neglect; or financial exploitation as defined in section 625.2 of this Part, unless the event or situation meets the criteria in paragraphs (1) or (2) of this subdivision.

(4) Requirements concerning agency involvement in deaths that are not under the auspices of an agency are in section 625.5 of this Part.

(b) The agency must intervene in an event or situation that meets the definition of physical, sexual, or emotional abuse; active, passive, or self neglect; or financial exploitation by taking actions to protect the involved individual with developmental disabilities. Such actions, as appropriate, may include but are not limited to the following:

(1) notifying an appropriate party that may be in a position to address the event or situation (e.g. Statewide Central Register of Child Abuse and Maltreatment, Adult Protective Services, law enforcement officials, family members, school, hospital, or the Office of Professional Discipline);

(2) offering to make referrals to appropriate service providers, clinicians, State agencies, or any other appropriate parties;

(3) interviewing the involved individual and/or witnesses;

(4) assessing and monitoring the individual;

(5) reviewing records and other relevant documentation; and

(6) educating the individual about his or her choices and options regarding the matter.

(c) The agency must intervene as it deems necessary and appropriate (see subdivision (b) of this section for a list of interventions) when the event or situation meets the definition of physical, sexual, or emotional abuse; active, passive, or self neglect; or financial exploitation, and involves an adult who meets the following criteria:

(1) the individual resides in a residence certified or operated by OPWDD (or a family care home);

(2) the individual receives day program services certified or operated by OPWDD;

(3) the individual receives Medicaid Service Coordination (MSC) or Plan of Care Support Services (PCSS) authorized by OPWDD; and/or

(4) the individual receives Home and Community Based Services (HCBS) waiver services authorized by OPWDD.

(d) The agency shall intervene by notifying Adult Protective Services of any event or situation that meets the definition of physical, sexual or emotional abuse; active, passive, or self neglect; or financial exploitation, when it involves an adult receiving services who meets the following criteria:

(1) the individual is only receiving family support services (FSS), individual support services (ISS), or Article 16 clinic services; and/or

(2) the individual is not available to the agency or sponsoring agency; and/or

(3) the individual is in need of protective services that the agency cannot provide.

(e) Mandated reporters identified in Section 413 of the Social Services Law who are required to report cases of suspected child abuse or maltreatment must report to the Statewide Central Register of Child Abuse and Maltreatment in accordance with the requirements of Article 6 of the Social Services Law.

(f) If more than one agency is providing services to the individual, there must be a responsible agency that is designated to intervene in events or situations that meet the definition of physical, sexual, or emotional abuse; active, passive, or self neglect; or financial exploitation.

(1) The agency responsible for intervening must be the provider of the services to the individual (or sponsoring agency) in the order stated:

(i) residential facility, including a family care home (note: this does not include free-standing respite facilities);

(ii) certified day program (if the individual is receiving services from more than one certified day program, the responsible agency shall be the agency that provides the greater duration of service on a regular basis);

(iii) MSC or PCSS;

(iv) HCBS Waiver services including respite services provided at a free standing respite facility or services under the Care at Home Waiver;

(v) FSS, ISS and/or Article 16 clinic services;

(vi) any other service certified, operated, or funded by OPWDD.

(2) If the discovering agency is not the responsible agency, the discovering agency must notify the responsible agency of the event or situation (unless it is sure that the responsible agency is already aware).

History

Adopted New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 625.4 OPWDD involvement in events or situations that are not under the auspices of the agency

(a) Reporting to OPWDD. The agency must report events or situations in which actions were taken by the agency in accordance with the requirements of section 625.3 of this Part as follows:

(1) The agency must submit an initial report about the event or situation in the OPWDD Incident Report and Management Application (IRMA).

(2) The agency or sponsoring agency must enter initial information about the event or situation within twenty-four hours of occurrence or discovery or by close of the next working day, whichever is later. Such initial information must identify all actions taken by the agency, including any initial actions taken to protect the involved individual.

(3) The agency must report updates on the event or situation in IRMA on a monthly basis or more frequently upon the request of OPWDD until the event or situation is resolved. Such updates must include information about subsequent interventions (see subdivision 625.3(b)) and include information about the resolution of the event or situation.

(4) Requirements concerning OPWDD involvement in deaths that are not under the auspices of an agency are in section 625.5 of this Part.

(b) Review/investigation by OPWDD.

(1) OPWDD has the right to investigate or review any event or situation regardless of the source of the information. The agency must provide OPWDD reviewers or investigators with all relevant records, reports, and other information pertaining to the event or situation. Individuals receiving services, staff, and any other relevant parties may be interviewed in pursuit of any such review or investigation.

(2) When an event or situation is investigated or reviewed by OPWDD, OPWDD may make recommendations to the agency or sponsoring agency concerning any matter related to the event or situation. This may include a recommendation that the agency conduct an investigation and/or take specific actions to intervene. In the event that OPWDD makes recommendations, the agency or sponsoring agency must either:

(i) implement each recommendation in a timely fashion and submit documentation of the implementation to OPWDD; or

(ii) in the event that the agency does not implement a particular recommendation, submit written justification to OPWDD within a month after the recommendation is made, and identify the alternative means that will be undertaken to address the issue, or explain why no action is needed.

History

Adopted New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 625.5 Agency and OPWDD involvement in deaths that are not under the auspices of the agency

(a) In accordance with New York State Law and guidance issued by the Justice Center, the death of any individual who had received services operated or certified by OPWDD, within thirty days preceding his or her death, and the death did not occur under the auspices of any agency, must be reported to the Justice Center for the Protection of People with Special Needs (Justice Center), as follows:

(1) The initial report must be submitted, by the agency's chief executive officer or designee, to the Justice Center death reporting line, in a manner specified by the Justice Center.

(2) The death must be reported immediately upon discovery and in no case more than twenty-four hours after discovery.

(3) Subsequent information must be submitted to the Justice Center, by submission of the Report of Death in IRMA within five working days of discovery of the death.

(4) The results of an autopsy, if performed and if available to the provider agency, must be submitted to the Justice Center within sixty working days of discovery of the death. (The Justice Center may extend the timeframe for good cause.)

Note: The requirements in this subdivision do not apply to the death of an individual who received only OPWDD funded services (such as community habilitation or supported employment services) provided by a voluntary-operated agency, rather than services that are operated or certified by OPWDD, to the death of an individual who resided in an OPWDD certified or operated residential program (see paragraph 625.2(a)(1) of this Part), or when the death occurred under the auspices of any agency.

(b) All deaths that are reported to the Justice Center must also be reported to OPWDD.

(1) A death that occurred under the auspices of a provider agency (see paragraph 625.2(a)(1) of this Part) must be reported as a serious notable occurrence in accordance with Part 624 of this Title.

(2) A death that did not occur under the auspices of any agency (see paragraph 625.2(a)(2) of this Part) must be reported in accordance with subdivision (c) of this section.

(c) The death of any individual who had received services certified, operated, or funded by OPWDD, within thirty days of his or her death, and the death did not occur under the auspices of any agency, must be reported to OPWDD as follows:

(1) All deaths must be reported immediately upon discovery to OPWDD by telephone or other appropriate methods. Immediate entry of initial information into the OPWDD Incident Report and Management Application (IRMA) is not sufficient to satisfy this requirement.

(2) The agency must submit an initial report about the death in IRMA within twenty-four hours of discovery of the death, or by close of the next working day, whichever is later, in the form and format specified by OPWDD.

(3) The agency shall submit subsequent information about the death by submission of the Report of Death in IRMA within five working days following discovery of the death.

(d) If more than one agency provided services to the individual, there must be one responsible agency that is designated to report the death of the individual to the Justice Center and/or OPWDD. The agency responsible for reporting in accordance with this paragraph shall be the provider of the services to the individual in the order stated:

(1) OPWDD certified or operated day program (if the individual received services from more than one certified day program, the responsible agency shall be the agency that provided the greater duration of service on a regular basis);

(2) MSC or PCSS (only OPWDD operated services report to the Justice Center);

(3) HCBS Waiver services (only OPWDD operated services report to the Justice Center);

(4) Care at Home Waiver services (only OPWDD operated services report to the Justice Center);

(5) Article 16 clinic services;

(6) FSS or ISS services (only OPWDD operated services report to the Justice Center);

(7) Any other service operated or funded by OPWDD.

(e) Investigations into deaths that did not occur under the auspices of an agency.

(1) The Justice Center has the right to investigate or review the death of any individual who had received services operated or certified by OPWDD, even if the death did not occur under the auspices of the agency. The agency must provide Justice Center reviewers or investigators with all relevant records, reports, and other information pertaining to the event or situation. Individuals receiving services, staff, and any other relevant parties may be interviewed in pursuit of any such review or investigation.

(2) OPWDD has the right to investigate or review, or to request a provider agency to investigate, the death of any individual, even if the death did not occur under the auspices of the agency. The agency must provide OPWDD reviewers or investigators with all relevant records, reports, and other information pertaining to the event or situation. Individuals receiving services, staff, and any other relevant parties may be interviewed in pursuit of any such review or investigation.

(3) If the Justice Center or OPWDD is responsible for the investigation, the agency must fully cooperate with the assigned investigator.

History

Adopted New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

Part 629 Eligibility for Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 629.1 Eligibility Determination Process

(a) Applicability. OPWDD will determine whether individuals are eligible for OPWDD operated, certified, funded and/or authorized services (hereinafter "services")

(b) General Eligibility Provisions

(1) Eligibility is determined by the application of consistent criteria based on the definition of developmental disability established in Mental Hygiene Law (MHL) section 1.03(22).

(2) Provisional Eligibility

(i) Provisional eligibility may be determined in children, up to the age of seven, who manifest substantial delays, with or without specific congenital or acquired conditions that result in a high probability of a developmental disability if services are not provided, and whose condition and/or functioning may improve significantly over time, as a result of treatments and services. They must also be a New York State resident or intend to reside in New York State at the time that services are delivered.

(ii) Provisionally eligible children who reach their 7th birthday cannot be authorized for additional services until a final eligibility determination has been made by OPWDD, except in extraordinary circumstances upon the approval of the Commissioner or their designee.

(iii) Provisional eligibility must be redetermined by a child's 8th birthday. Children 7 years and older seeking OPWDD services must meet full OPWDD eligibility criteria.

(3) OPWDD may review or re-review an individual's eligibility at any time. Applicants determined ineligible may reapply for services upon receipt of new or differing information that supports eligibility at any time.

(4) OPWDD, through its Developmental Disabilities Regional Office (DDRO), is responsible for determining whether a person is eligible for OPWDD services. A Three-Step process, as described herein, is used by OPWDD to make an eligibility determination of developmental disability.

(5) A determination that a person is eligible to receive OPWDD services based on the individual meeting the criteria for a developmental disability does not mean the person is automatically eligible for all OPWDD services, as some OPWDD services have additional eligibility criteria.

(1) Eligibility Request.

(i) A request for eligibility in a form and format specified by OPWDD must accompany all requests submitted to the DDRO for eligibility determinations. The request for eligibility includes the name of the person, the name of the person's representative, and relevant contact information. The request for eligibility also includes documentation of the person's developmental disability including information related to condition/diagnosis, standardized intelligence testing, standardized measures of adaptive functioning, information related to history and presence of disability prior to age 22, a full report of all contemporary diagnoses or classifications of health, physical, developmental, or psychiatric conditions that are relevant to the determination of eligibility, and other information that may be requested by OPWDD.

(2) 1st Step Review.

(i) DDRO staff review the eligibility request for completeness and share the information with staff designated by the Director, as necessary. After this review, the DDRO notifies the person in writing that:

(a) Eligibility or provisional eligibility has been determined; or

(b) The request requires additional documentation; or

(3) 2nd Step Review.

(i) DDRO clinicians designated by the DDRO Director conduct a 2nd Step Review of the eligibility request forwarded by the 1st Step Review, along with any additional documentation provided by the person. If these clinicians require additional information, the person is notified in writing of the type of information needed and the date by which it must be submitted to the DDRO.

(ii) Following the 2nd Step Review, the DDRO provides the individual with written notification of its determination. If the person is found ineligible for OPWDD services because he or she does not meet the criteria for a developmental disability, as defined in MHL Section 1.03(22) and associated guidelines, the letter shall offer the person and his or her representative the opportunity to:

(a) Meet with DDRO staff to discuss the determination and documentation reviewed; and/or

(b) Request a 3rd Step Review; and/or

(iii) A Notice of Decision informing the person of his or her right to request a Medicaid fair hearing is sent only when the request for services indicates that the person is interested in receiving Medicaid funded services if determined eligible. If the person has not indicated Medicaid funded services, no fair hearing is required and the decision of the DDRO is final.

(iv) If a fair hearing is requested, a 3rd Step Review will automatically be conducted.

(4) 3rd Step Review.

(i) 3rd Step Eligibility Determination Committee conducts the 3rd Step Reviews. Committee members include licensed practitioners who are not directly involved in the determinations made at the 1st and 2nd Step Reviews. The Committee reviews the submitted eligibility request and any additional documentation provided by or on behalf of the per son. The Committee forwards its recommendations to the DDRO. The DDRO considers the 3rd Step recommendations and informs the person of any change in the DDRO's determination. 3rd Step Reviews will be made prior to any fair hearing date

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 629.2 Eligibility Criteria

(a) Applicability. This section applies to any person applying to OPWDD for a determination of whether the person has a qualifying condition that meets the criteria of developmental disability, as set forth in Mental Hygiene Law (MHL) § 1.03(22), making them eligible for certain OPWDD operated, certified, funded and/or authorized services.

(b) General Eligibility Provisions.

(1) Eligibility is determined by the consistent application of criteria described in subdivisions (c) through (f) of this section, based on the definition of developmental disability established in MHL § 1.03(22).

(2) To be eligible for OPWDD services, the person seeking eligibility must be a New York State resident or intend to reside in New York State at the time the services are delivered.

(3) The process for reviewing eligibility requests is described in section 629.1 of this Part.

(1) Qualifying conditions must meet the criteria set forth in MHL § 1.03(22)(a).

(2) Qualifying related conditions under MHL § 1.03(22)(a)(2) must be closely related to intellectual disability, including that they must cause or result from injury to, or dysfunction, disorder, or impairment of, the central nervous system.

(3) A valid diagnosis of a qualifying condition named in MHL § 1.03(22)(a)(1) or related condition as defined in MHL § 1.03(22)(a)(2) is required.

(d) Functional Limitations.

(1) Whether a person's functional limitations satisfy the requirement of substantial handicap under MHL § 1.03(22)(d) is determined by at least one acceptable assessment. Assessments are acceptable only when they:

(i) use comprehensive, nationally normed and validated individual measures;

(ii) are administered and interpreted by a qualified practitioner; and

(iii) follow appropriate administration guidelines.

(2) Functional limitations are considered a substantial handicap when they are associated with, attendant to, or result from, a qualifying condition as described in subdivision (c) of this section, and:

(i) they prohibit the person from being able to function independently in daily life; or

(ii) when the development of the person's functional skills related to daily living are significantly below the expectations given the person's age; and

(iii) the limitations are consistent with deficits in adaptive functioning as described in paragraph (4) of this subdivision.

(3) Intellectual Functioning.

(i) Significant limitations in general intellectual functioning must be determined from the findings of one or more acceptable assessments. Assessments are acceptable only when they employ an independent measure of intelligence that is:

(a) comprehensive, nationally normed, and validated;

(b) administered in a standardized format;

(d) administered in accordance with standardization procedures; and

(e) interpreted by a qualified practitioner.

(ii) In exceptional circumstances, OPWDD may accept non-standardized testing formats if appropriate rationale and justification is clearly documented.

(iii) Functional limitations must not be presumed solely based on below average scores on assessments of intellectual functioning.

(4) Adaptive Functioning.

(i) Significant limitations in adaptive functioning must be determined from the findings of one or more acceptable assessments. Assessments are acceptable only when they employ an independent measure of intelligence that is:

(a) comprehensive, nationally normed and validated;

(b) administered in a standardized format;

(d) administered in accordance with standardization procedures; and

(e) interpreted by a qualified practitioner.

(ii) Adaptive behavior measures that do not provide an overall composite score, multiple domain scores, or skill area scores will not be considered for determining the presence of functional limitations that constitute a substantial handicap.

(iii) The requirement of a substantial handicap may be satisfied if the overall composite score, or the majority of domain or specific skill area/subdomain scores, fall two or more standard deviations below the mean on a comprehensive and validated measure of adaptive behavior.

(iv) If adaptive behavior measures that permit assessment of both adaptive and maladaptive behavior are used, a finding of clinically significant maladaptive behaviors will not constitute a substantial handicap without a concurrent finding of significant limitations in adaptive behavior.

(v) An assessment of significant limitations in adaptive behavior, on its own, must not constitute a basis upon which the presence of significantly below average intellectual functioning is presumed.

(5) Co-occurring Disorders.

(i) The requirement of a substantial handicap is not satisfied if significant functional limitations are determined to be the result of a current acute or severe phase of a psychiatric disorder or a consequence of the person's psychiatric disorder, substance use, or substance-related disorder.

(e) Onset.

(1) To satisfy the requirements of MHL § 1.03(22)(b), the qualifying condition, as described in subdivision (c) of this section, and the associated functional limitations, as described in subdivision (d) of this section, must verifiably be established to have occurred before the person reached the age of 22.

(2) The person seeking eligibility, or other relevant party, must submit historical medical records establishing the onset of their qualifying condition and functional limitations before the age of 22. In cases where such records are presumed to no longer exist, the person seeking eligibility must make requests for this information and document both the request for information and the response to the request.

(3) If no information is available to determine the age of onset, Developmental Disabilities Regional Offices may rely on other sources of information to determine the age of onset, including the informed clinal judgment of appropriately licensed professionals.

(f) Indefinite Duration.

(1) To satisfy the requirements of MHL § 1.03(22)(c), there must be a reasonable likelihood of indefinite continuation of the qualifying condition, as described in subdivision (c) of this section, and of the associated functional limitations, as described in subdivision (d) of this section.

History

Adopted New York State Register June 14, 2023/Volume XLV, Issue 24, eff. 6/14/2023

Part 630 Eligibility Determinations For Children Who Are Aging Out

N.Y. Comp. Codes R. & Regs. Tit. 14 § 630.1 Applicability

This Part applies to the Office for People With Developmental Disabilities (OPWDD) and its local administrative offices, the Developmental Disabilities Services Offices (DDSOs). It does not apply to voluntary agencies or private providers of services.

History

Amended New York State Register November 15, 2017 /Volume XXXIX, Issue 46, eff. 11/15/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 630.2 Background

(a) Section 4402 (1)(b)(5) of the Education Law and section 398 (13) of the Social Services Law require that the committee on special education, multidisciplinary team or social services official send a report to OPWDD (if certain conditions are met) about a child who will be aging out and who may need adult services in the OPWDD system. A person ages out when he or she is no longer able to receive services in the educational system, foster care system or other system for children because of his or her age (usually related to the person attaining 21 years of age).

(b) Section 13.37 of the Mental Hygiene Law sets forth the responsibilities of OPWDD related to the planning and referral process for children who are aging out.

(1) Once a report about the child has been received by OPWDD, OPWDD is charged with reviewing the report to determine whether the child will likely need adult services, including evaluating the child if necessary.

(2) If OPWDD determines that the child will not require adult services, OPWDD is required to notify the child's parent or guardian and referring entity. Chapter 508 of the Laws of 2008 amended section 13.37 of the Mental Hygiene Law to establish that if this determination is not acceptable to the child's parent or guardian, he or she may appeal the determination.

History

Amended New York State Register November 15, 2017 /Volume XXXIX, Issue 46, eff. 11/15/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 630.3 Determination of eligibility for services in the OPWDD system

OPWDD shall determine whether individuals meet the criteria established in section 1.03 (22) of the Mental Hygiene Law and are therefore eligible to receive services in the OPWDD system. OPWDD determinations shall be in accordance with the eligibility determination process described in "Eligibility for OPWDD Services" which is inserted into section 630.5 of this Part.

History

Amended New York State Register November 15, 2017 /Volume XXXIX, Issue 46, eff. 11/15/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 630.4 Procedures for children aging out

(a) For the purposes of meeting the requirements of section 13.37 of the Mental Hygiene Law, a child is determined to "likely need adult services" if the child is eligible for services in the OPWDD system.

(b) Upon receiving a report submitted pursuant to section 4402 (1)(b)(5) of the Education Law or section 398 (13) of the Social Services Law, OPWDD shall determine whether the child is eligible for services utilizing the eligibility determination process described in "Eligibility for OPWDD Services."

(c) If OPWDD determines that the child is not eligible for services, it shall notify the child's parent or guardian and the committee on special education, multidisciplinary team or social services official which submitted the report.

(1) Such notice shall state the reasons for the determination and may recommend a state agency which may be responsible for determining and recommending adult services.

(2) If the determination is not acceptable to the child's parent or guardian, he or she may appeal the determination in accordance with the eligibility determination process described in "Eligibility for OPWDD Services." The notice to the parent or guardian shall also describe the procedures for appealing the determination.

History

Amended New York State Register November 15, 2017 /Volume XXXIX, Issue 46, eff. 11/15/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 630.5 Eligibility for OPWDD services

The following policy of OPWDD entitled "Eligibility for OPWDD Services" is hereby inserted into this Part.

New York State Office for People With Developmental Disabilities

ELIGIBILITY FOR OPWDD SERVICES

Important Facts

Revised December, 2008

OPWDD, through its local Developmental Disabilities Services Offices (DDSO), determines whether a person has a developmental disability and is eligible for OPWDD funded services. This fact sheet describes the Three-Step process used by OPWDD to make an eligibility determination of developmental disability.

NOTE: A determination of developmental disability does not mean the person is eligible for all OPWDD funded services. Some OPWDD funded services have additional eligibility criteria. For example, Intermediate Care Facilities, and Home and Community Based (HCBS) waiver programs include an additional level of care determination, and individuals are eligible for HCBS services only when they reside in appropriate living arrangements. These and other additional criteria for eligibility of specific OPWDD services are not reviewed through this process

ELIGIBILITY DETERMINATION PROCESS

Eligibility Request

An OPWDD Transmittal Form must accompany all requests submitted to the DDSO for eligibility determinations. The Transmittal Form includes the name of the person, the name of the person's representative, and relevant contact information. Documentation of the person's developmental disability must also be included as part of the eligibility request

1st Step Review

DDSO staff review the eligibility request for completeness and share the information with other staff designated by the Director, as necessary. After this review, the DDSO notifies the person in writing that:

(a) Eligibility or provisional eligibility has been determined; or

(b) The request is incomplete and requires additional documentation; or

2nd Step Review

DDSO clinicians designated by the DDSO Director conduct a 2nd Step Review of the eligibility request forwarded by the 1st Step Review, along with any additional documentation provided by the person. If these clinicians require additional medical information, psychological test results, or historical documentation, the person is notified in writing of the type of information needed and the date by which it must be submitted to the DDSO

Following the 2nd Step Review, the DDSO provides the person with written notification of its determination. If the person is found ineligible for OPWDD services because he or she does not have a developmental disability, the letter shall offer the person and his or her representative the opportunity to:

(a) Meet with DDSO staff to discuss the determination and documentation reviewed; and

(b) Request a 3rd Step Review; and

Note that a Notice of Decision informing the person of his or her right to request a Medicaid fair hearing is sent only when the Transmittal Form indicates that the person is interested in receiving Medicaid funded OPWDD services if determined eligible. If the person has not indicated Medicaid funded services, no fair hearing is offered and the decision of the DDSO is final

The person may choose one, two or all three of the above options. If a fair hearing is requested, a 3rd Step Review will automatically be conducted

3rd Step Review

3rd Step Eligibility Determination Committees established by OPWDD in NYC and Albany conduct the 3rd Step Reviews. Committee members include licensed practitioners who are not directly involved in the determinations made at the 1st and 2nd Step Reviews. The Committee reviews the submitted eligibility request and any additional documentation provided by or on behalf of the person. The Committee forwards its recommendations to the DDSO Eligibility Coordinator. The DDSO Director or designated staff person considers the 3rd Step recommendations and informs the person of any change in the DDSO's determination. 3rd Step Reviews will be made prior to any fair hearing date.

History

Amended New York State Register November 15, 2017 /Volume XXXIX, Issue 46, eff. 11/15/2017

Part 633 Protection of Individuals Receiving Services in Facilities and Services Operated and/or Certified by OPWDD

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.3 Statutory authority

(a) Section 13.01 of the New York State Mental Hygiene Law establishes that New York State has responsibility for the comprehensively planned care, treatment and rehabilitation of New York State's citizens with developmental disabilities.

(b) Section 13.07 (c) of the Mental Hygiene Law establishes that OPWDD shall have responsibility for seeing that persons with developmental disabilities receiving care and treatment have their personal and civil rights protected.

(c) Section 13.09 (b) of the Mental Hygiene Law grants the commissioner (see glossary, section 633.99 of this Part) of OPWDD the authority to adopt rules and regulations necessary and proper to implement any matter under his or her jurisdiction.

(d) Sections 13.21 (b) and 16.13 (b) of the Mental Hygiene Law require the reporting of apparent crimes related to alleged abuse to the district attorney or other appropriate law enforcement official within three working days of the event.

(e) Section 16.17 of the Mental Hygiene Law authorizes the commissioner to revoke, suspend or limit an operating certificate or impose a fine, or temporarily suspend or limit an operating certificate, for failure to comply with the provisions of applicable statutes, rules or regulations; and permits the removal of any or all persons if there is a situation that poses imminent danger to their health or safety.

(f) Section 16.19 of the Mental Hygiene Law addresses the confinement, care and treatment of persons who have a developmental disability.

(g) Section 16.29 of the Mental Hygiene Law requires the promulgation of regulations establishing standards for protection of children from abuse by addressing applicant background verification, supervision of employees and volunteers, reporting and responding to allegations of abuse, removal when an individual is at risk, appropriate preventive and remedial actions, and training of both staff and individuals receiving services in all certified facilities.

(h) Section 29.29 of the Mental Hygiene Law requires the promulgation of regulations establishing standards for protection of children from abuse by addressing applicant background verification, supervision of employees and volunteers, reporting and responding to allegations of abuse, removal when an individual is at risk, appropriate preventive and remedial actions, and training of both staff and individuals in all developmental centers.

(i) Article 33 of the Mental Hygiene Law establishes the basic civil rights pertaining to persons receiving services for mental disabilities. Section 33.02 provides a mechanism for notifying each person residing in a developmental center of certain rights, including freedom from abuse and mistreatment by employees and other residents. Section 33.04 sets forth requirements for the use of an apparatus for restraint purposes as specifically stated therein. Section 33.13 addresses the content and confidentiality of clinical records. Section 33.16 establishes rules for access to clinical records by the person for whom the record is maintained and certain other qualified parties.

(j) Section 41.41 of the Mental Hygiene Law provides a mechanism for setting forth certain rights for persons residing in a community residence, including the right to be free from physical or psychological restraint or pressure, subject to section 33.04 of such law.

(k) Article 80 of the Mental Hygiene Law provides a mechanism for surrogate decisionmaking relative to certain medical treatment.

(l) Sections 131-o and 366 of the New York State Social Services Law provide information on the determination of personal allowance (see glossary). Section 131-o also provides guidance on the management of personal allowances.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.5 Applicant backgrounds

(a) The agency/facility, including the sponsoring agency for a family care home, shall establish and maintain written personnel policies/procedures relative to obtaining, reviewing, evaluating and verifying the backgrounds of and information supplied by applicants for employment or voluntary work either to deliver services at a facility or to deliver services operated, authorized or funded by OPWDD; or applicants for certification as a family care provider. Policies and procedures are subject to and must be consistent with any applicable collective bargaining agreement(s), provisions of the Civil Service Law, and/or other relevant laws.

(b) In accordance with the agency's policies/procedures, the application process for employees, volunteers (see section 633.99 of this Part) or prospective family care providers shall include, but need not be limited to, the following requirements:

(1) A statement or summary of the applicant's history of employment or related experience.

(i) Parties who are applying to be an employee or volunteer shall supply information about prior employment and volunteer history in the form and format specified by OPWDD to facilitate checks of abuse history by OPWDD in conformance with section 16.34 of the Mental Hygiene Law. This includes:

(a) complete employment/volunteer history for the prior seven years; and

(b) employment/volunteer history at any time for positions where the applicant provided services for individuals with developmental disabilities.

(ii) To the extent relevant information was not provided pursuant to subparagraph (i) of this paragraph, every effort shall be made to obtain the following information either on a written application or during the interview process:

(a) any prior or current experience as an employee, volunteer, or certified provider with OPWDD; any other State agency; or any other provider of human services; and

(b) any prior or current experience in direct care work relevant to the position for which an application is being made.

(2) Names, addresses and, where available, telephone numbers of references who can verify the applicant's history of employment or related experience, work record and qualifications.

(3) Names, addresses and telephone numbers of at least two personal references, other than relatives, who can attest to the applicant's character, reputation and personal qualifications.

(4) A statement or summary of the applicant's education showing, at a minimum, the highest grade level or degree attained, any additional credits earned, and any relevant education or training regarding care of or services to individuals with developmental disabilities. At a minimum the names and addresses of schools and other educational institutions that can verify that the applicant meets the minimum qualifications for the job for which application is being made shall be provided.

(5) Information indicating special skills or completed training/courses which might aid in the performance of duties of the position for which the application is being made. Such information shall include any relevant professional license held by the applicant.

(6) A sworn statement by the applicant, indicating whether or not to the best of his or her knowledge, he or she has ever been convicted of a misdemeanor or a felony in any jurisdiction, and whether there is any pending criminal charge against the applicant. The statement shall include a description of all convictions and pending criminal charges.

(7) A statement by an applicant for a position for which driving is required, indicating whether he or she has ever been convicted of a motor vehicle moving violation, including, but not limited to, alcohol and drug-related offenses. The statement must also indicate any suspension, revocation, or occurrence involving harm to human beings or property while driving.

(8) A statement that all information provided on the application is true.

(9) An application form or other appropriate form that informs the applicant that a false answer to any question in the application process is grounds for immediate dismissal.

(1) Check of the register of substantiated category one cases of abuse or neglect, also known as the Staff Exclusion List (SEL). Agencies shall request an SEL check concerning all applicants who are required to be checked pursuant to section 495 of the Social Services Law and section 633.24 of this Part.

(2) Criminal history record check. Agencies shall request a criminal history record check for applicants who are required to be checked pursuant to section 16.33 of the Mental Hygiene Law and section 633.22 of this Part.

(3) Check of the Statewide Central Register of Child Abuse and Maltreatment (SCR). Agencies shall request an SCR check for applicants who are required, and for applicants who are authorized, to be checked pursuant to section 424-a of the Social Services Law and section 633.24 of this Part.

(4) MHL 16.34 check. Agencies shall submit a request for an MHL 16.34 check to OPWDD for applicants who are required to be checked pursuant to section 16.34 of the Mental Hygiene Law and section 633.24 of this Part.

(d) Personnel records shall:

(1) be maintained at a location of the agency's/facility's own choosing that ensures the confidentiality of such records;

(2) include application information as required by the agency's/facility's policies and procedures and subdivision (b) of this section;

(3) include a copy or documented verification of an employee's, volunteer's or family care provider's academic credential and/or current certification or licensure, if such an academic credential, certification or licensure is a condition of employment or participation; and

(4) include documented confirmation of an applicant's last place of employment or related experience.

(e) The agency shall not dispose of personnel records prior to six years after the employee or volunteer separates from service or a family care provider no longer holds an operating certificate. Such disposal shall be performed in a manner that ensures the privacy and confidentiality of the information.

(1) Any other requirement in law or regulation to maintain records for a longer period of time shall be controlling.

(2) Any other requirement in law or regulation to dispose of records prior to the period of time specified in this subdivision shall be controlling.

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.6 Supervisory requirements

(a) Principles of compliance.

(1) Each agency/facility operated or certified by OPWDD shall establish written agency/facility policies/procedures relative to the supervision of employees and volunteers that, at a minimum:

(i) identify all line and onsite supervisors and their supervisory responsibilities;

(ii) provide a mechanism whereby employees and volunteers on all shifts are made aware of the identity and availability of their supervisors;

(iii) provide for periodic supervisory consultation with employees and volunteers;

(iv) designate the method whereby supervisors are evaluated relative to their managerial and supervisory skills; and

(v) are available to employees and volunteers.

(2) In developing such policies/procedures, the agency/facility shall take into consideration the population served; architectural factors; facility size; staffing patterns and rationales; qualifications and stated responsibilities of supervisors; and training of staff and supervisors, particularly in the prevention, reporting, remediation or treatment of abuse.

(3) Appropriate assistance shall be given to those supervisors whose evaluation has indicated the need for improvement of managerial or supervisory skills.

(b) Standards of certification.

(1) The line and onsite supervisors are known to the employees and volunteers interviewed.

(2) The methods designated to evaluate line and onsite supervisors are known to the supervisors interviewed.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.7 Conduct of employees, volunteers, family care providers and custodians

(a) Principles of compliance.

(1) Every agency/facility or sponsoring agency shall have policies/procedures that address the conduct of employees, volunteers and family care providers while functioning in a work- related capacity.

(2) At a minimum, employees, volunteers and family care providers shall be advised of the following:

(i) Employees and volunteers shall not distribute, sell, possess, purchase or consume illegal substances or alcohol while at the workplace or while performing in a work-related capacity. However, the consumption of alcohol on special occasions shall be permitted with the prior written permission of the program administrator. Family care providers shall not distribute, sell, possess, purchase or use illegal substances.

(ii) Employees and volunteers shall not come to work, or work, if their ability to perform their job is impaired due to the use of alcohol, a controlled substance, an illegal substance or a prescribed medication. Family care providers shall make alternative care arrangements.

(iii) Individuals receiving services at the facility shall not carry out the duties of employees, unless such tasks are described in his or her plan of services by the program planning team for the purpose of increasing the person's skills.

(iv) Individuals receiving services at the facility shall not be subject to inappropriate exposure to firearms or other weapons in or on the grounds of a facility. There shall be policies/procedures governing the presence and safekeeping of firearms or other weapons in the facility or on the grounds. Nothing in this subdivision shall preclude a person from pursuing the opportunity to receive certification of successful completion of a hunter safety course for a specified firearm or weapon, and the subsequent appropriate use of such firearm or other weapon.

(v) There shall be no personal financial transactions between employees, volunteers or family care providers and persons receiving services which may be construed as exploitation of that person or result in greater benefit to the employee, volunteer or family care provider than to the person.

(vi) Employees, volunteers and family care providers shall treat all client information about the person being served as confidential and utilize such information in a professional manner at all times. To the extent employees, volunteers or family care providers obtain HIV-related information concerning a person, such information shall be maintained in confidence as required by 10 NYCRR Part 63 and the provisions of section 633.19 of this Part.

(3) The agency/facility or sponsoring agency shall take appropriate action in the event that misconduct occurs relative to paragraph (2) of this subdivision.

(b) Standards of certification.

(1) There are written policies/procedures addressing the conduct of employees and volunteers.

(2) OPWDD shall verify that employees and volunteers have been advised of conduct requirements while functioning in a work-related capacity.

(3) There is documentation that family care providers have been advised of conduct expectations in writing by the sponsoring agency.

(c) Requirements concerning the code of conduct adopted by the Justice Center for People with Special Needs (Justice Center).

(1) Applicability. The requirements of this subdivision are applicable to facilities and programs certified or operated by OPWDD.

(i) The agency operating the facility or program is responsible for assuring compliance with the requirements of this subdivision.

(ii) The sponsoring agency is responsible for compliance concerning family care homes.

(2) Pursuant to section 554 of the Executive Law, the Justice Center shall adopt a code of conduct for custodians with regular and direct contact with individuals receiving services from such facilities or programs. Such code of conduct governs the conduct of such custodians with respect to the safety, dignity and welfare of vulnerable persons to whom they provide care.

(3) For the purposes of this section only, the definition of custodian is: A party that meets one of the following criteria:

(i) a director, operator, employee or volunteer of a facility or program which is certified or operated by OPWDD; or

(ii) a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to such facility or program pursuant to contract or other arrangement that permits such party to have regular and substantial contact with individuals receiving services from the facility or program; or

(iii) a family care provider; or

(iv) a family care respite/substitute provider.

(4) New custodians of the facility or program with regular and direct contact must read and sign the code of conduct at the time of employment or affiliation.

(5) All custodians with regular and direct contact must read and sign the code of conduct adopted by the Justice Center on at least an annual basis.

(6) Note that the Justice Center may amend the code of conduct as appropriate.

(7) Pursuant to section 554 of the Executive Law, the Justice Center shall establish a process which provides for the enforcement of the code of conduct consistent with appropriate collective bargaining agreements. The agency or sponsoring agency shall enforce the code of conduct in accordance with the process established by the Justice Center.

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.8 Training of employees, volunteers, family care providers and persons receiving services with regard to their safety and the prevention of abuse to those persons

(a) Principles of compliance.

(1) It is the responsibility of the agency or the sponsoring agency to heighten the awareness of its employees, volunteers, and family care providers to those factors which affect and/or contribute to situations that can be potentially abusive or harmful. To this end, there shall be training (see section 633.99 of this Part) of employees, volunteers and family care providers to meet the needs of staff, volunteers and persons who receives services in the following topics:

(i) principles of human growth and development;

(ii) characteristics of the persons served;

(iii) promoting positive relationships;

(iv) abuse prevention, identification, reporting, and processing of allegations of abuse;

(v) laws, regulations and policies/procedures governing protection from abuse;

(vi) incident and abuse reporting and processing;

(vii) the agency's safety and security procedures (including fire safety);

(viii) the prevention of circumstances that would result in exposure to body substances which could put persons or others at significant risk (see glossary) for HIV infection (see glossary);

(ix) the program for managing anyone exposed to significant risk body substances during circumstances which meet the criteria for significant risk contact; and

(x) other appropriate topics relative to safety and welfare, especially those that may be related to the functions of the employee, volunteer or family care provider.

(2) Individuals receiving services shall be provided training in techniques and procedures to protect themselves from abuse and other events and circumstances that constitute reportable incidents as defined in Part 624 of this Title.

(i) Training is only required for individuals who have been identified by their program planning team as being capable of benefiting from such training.

(ii) Training shall be provided to the extent possible consistent with an individual's disabilities, age, needs, and circumstances.

(3) The agency or sponsoring agency shall monitor the need for and supervise the provision of such training specified in paragraphs (1)-(2) of this subdivision.

(4) All reasonable and necessary actions shall be taken to ensure that employees, volunteers and family care providers are kept apprised on a current basis of all applicable policies and procedures relating to the protection of individuals receiving services from abuse.

(b) Standards of certification.

(1) OPWDD shall verify that employees, volunteers, and family care providers have received or will receive training within three months of initial employment, commencing volunteer activities, or initial certification as a family care provider. The training shall be on:

(i) principles of human growth and development;

(ii) characteristics of the persons served;

(iii) promoting positive relationships;

(iv) abuse prevention, identification, reporting, and processing of allegations of abuse;

(v) laws, regulations and policies/procedures governing protection from abuse;

(vi) incident reporting and processing;

(vii) the agency's safety and security procedures (including fire safety); and

(viii) other appropriate topics relative to the safety and welfare as may have been specified by the agency.

(2) Employees, volunteers and family care providers shall receive training in the following areas on at least an annual basis:

(i) promoting positive relationships;

(ii) abuse prevention, identification, reporting, and processing of allegations of abuse;

(iii) laws, regulations and policies/procedures governing protection from abuse;

(iv) incident reporting and processing; and

(v) the agency's safety and security procedures (including fire safety).

(3) There is a mechanism for monitoring the type, frequency and amount of training employees, volunteers or family care providers need and received, and that:

(i) the records are current; and

(ii) employees, volunteers or family care providers, through interview, concur that they have received the specified training.

(4) OPWDD shall verify that persons identified by their program planning team as being capable of benefiting from training in techniques/procedures which will enable them to protect themselves from abuse, have received such training.

(5) Effective November 1, 2011, members of boards of directors of certain not-for-profit corporations shall receive a one-time training within three months of the date the party becomes a board member.

(i) This requirement applies only to not-for-profit corporations which operate certified facilities and/or provide home and community based waiver services and/or provide Medicaid service coordination.

(ii) Training of board members is required in the following topics:

(a) abuse prevention, identification, reporting, and processing of allegations of abuse;

(b) laws, regulations and policies/procedures governing protection from abuse; and

(iii) All parties serving on boards of directors on November 1, 2011 shall receive the specified training by February 1, 2012 (if the party remains on the board of directors on February 1, 2012).

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.9 Facility Directors as Representative Payees

(a) Applicability. This section applies to OPWDD operated and certified residential facilities, including family care homes.

(b) Definitions.

(1) Beneficiary means an individual who is receiving Social Security or other federal or state benefits.

(2) Facility means an OPWDD operated or certified residential facility. As used in this section, facility also means the agency that sponsors a Family Care home.

(3) Facility director means the executive director, administrator, CEO, or its equivalent of an OPWDD operated or certified residential facility. As used in this section, facility director also means the executive director, administrator, CEO, or its equivalent of an agency that sponsors a family care home.

(4) Health care professional means physician, psychologist, or other qualified medical practitioner whose statements are acceptable to the benefit paying agencies for the purposes of determining the beneficiary's ability to handle his or her benefits.

(5) Lump sum retroactive benefit means a lump sum retroactive payment of a federal or state benefit that exceeds the expected monthly recurring amount for a reason other than a delay in processing an application, changing a representative payee, or similar administrative delay.

(6) Medicaid exception trust means a trust that contains the assets of the beneficiary in which both the principal and income of the trust are considered exempt for purposes of determining the beneficiary's eligibility for Medicaid and/or Supplemental Security Income.

(7) Representative payee means a party designated by a benefit paying organization to receive an individual's benefit payments in a fiduciary capacity and in compliance with federal and state laws and regulations. This includes, but is not limited to, a party specifically designated by the Social Security Administration (SSA) to handle benefits on behalf of a beneficiary.

(1) The beneficiary does not have a representative payee. If an individual does not have a representative payee, then within ten (10) business days of a beneficiary's move into a facility, the facility director, in consultation with the beneficiary's planning team, must conduct a review to determine whether the appointment of a representative payee to manage the individual's benefits is advisable. The basis for the determination must be documented in the beneficiary's record. If the facility director and the planning team question whether an individual is able to manage his or her benefits, then the individual must be evaluated by a health care professional. If, in the health care professional's opinion, the beneficiary cannot manage his or her benefits, then the facility director may apply to become the beneficiary's representative payee. If, in the health care professional's opinion, the beneficiary is capable of managing his or her own benefits, then the facility director may not apply to become the beneficiary's representative payee.

(2) The beneficiary has a representative payee. If an individual has a representative payee, then within ten (10) business days of a beneficiary's move into a facility, the facility director, in consultation with the beneficiary's planning team, must conduct a review to determine whether there is a continuing need for the appointment of a representative payee for the beneficiary.

(i) If the facility director and the planning team determine that the beneficiary continues to require a representative payee, then the facility director may apply to become the beneficiary's representative payee.

(ii) If the facility director and/or the planning team determine that a beneficiary may no longer require a representative payee, or are unsure, then the individual must be evaluated by a health care professional. If the health care professional's opinion is that the beneficiary cannot manage his or her benefits, then the facility director may apply to become the beneficiary's representative payee. If the health care professional's opinion is that the beneficiary can manage his or her benefits, then the facility director may not apply to become the beneficiary's representative payee. The facility director must notify the benefit paying agency of any change.

(iii) The basis for the determination of the beneficiary's need or continuing need for a representative payee, as set forth in subparagraphs (i) and (ii) of this paragraph, must be documented in the beneficiary's record.

(3) A determination of a beneficiary's need for a representative payee must also be made under the following circumstances and must be documented in the beneficiary's record:

(i) when there is a significant change in the beneficiary's physical or mental condition;

(ii) in response to a circumstance that affects the beneficiary's ability to manage his or her benefits;

(iii) upon request of the beneficiary or a party making a request on behalf of the beneficiary;

(iv) when a beneficiary transfers from one certified residence to another and both residences are operated by the same agency, and the person needs different supports, then the facility director must follow the requirements of paragraphs (1) and (2) of this subdivision; and

(v) when a beneficiary transfers from one certified residence to another, and the residences are operated by different agencies, then the facility director must follow the requirements of paragraphs (1) and (2) of this subdivision.

(4) If the facility director applies to be representative payee, the director must provide notification in accordance with subdivision (d) of this section. If notice is not provided, then the reason must be documented in the beneficiary's record.

(d) Notice to qualified persons of intent and application for representative payee status.

(1) Whenever a facility director intends to apply to be representative payee of a beneficiary who is receiving services from an OPWDD operated or certified residential facility, the facility director must give concurrent written notice to the qualified parties as set forth in Mental Hygiene Law 33.16(a)(6) and any other party designated by the beneficiary, of the facility director's intent to make such application.

(i) A facility director is not required to provide notice pursuant to this section if the beneficiary is a "person, capable adult" as defined in subdivision 633.99(bp) of this Part, and the beneficiary objects to such notice; if such notice is prohibited by Court order; or, if the facility director, in consultation with the planning team, determine that it would cause substantial and identifiable harm to the beneficiary. This determination must be documented in the beneficiary's record.

(ii) The notice will be deemed to have been provided if hand delivered, mailed by first class mail to the last known address of the recipient(s) of the notice, or mailed electronically to the last known email address of the recipient(s).

(iii) The notice to beneficiaries must include information that the Mental Hygiene Legal Service is available to advise beneficiaries regarding the application process.

(2) During the application process or following the appointment of a facility director as a beneficiary's representative payee, the facility must ensure that the beneficiary is apprised of his or her right at any time to request to receive benefits directly, or to request a change in representative payee. Such request must be directed to the Social Security Administration or the federal or state entity that made the appointment.

(e) Policies and procedures.

(1) If a facility director serves or may serve as representative payee, then the residential services agency must establish policies and procedures for the management and use of funds paid to the facility director as representative payee. These policies and procedures must be in compliance with all applicable federal and state laws and regulations. At a minimum, such policies and procedures must include provisions for:

(i) establishment and maintenance of beneficiary accounts in interest bearing accounts;

(ii) individual accounting to segregate balances and permit the application of interest earned, if any, on a pro-rated basis, for collective accounts;

(iii) internal controls to keep the beneficiary accounts and funds secure, prevent identity theft, provide specific authorization for banking transactions, and document receipts and disbursements;

(iv) response to a request to review the representative payee account;

(v) designation of an appropriate staff member to act as a liaison between the facility director and the beneficiary;

(vi) management of the personal allowance derived from the benefit referenced in 633.15; and

(vii) consideration of the use of a Medicaid exception trust, Supplemental Needs Trust, or similar device to protect a lump sum retroactive benefit, inheritance or any other funds which would affect eligibility for benefits.

(2) If the representative payee is the facility director, then the representative payee must:

(i) manage the benefits without charging a fee;

(ii) manage the personal allowance portion of the income without a charging a fee;

(iii) maintain a record of all funds received, including earned income, and report to the benefit paying organization(s) on these funds as required, and;

(iv) maintain a record of all resources, with current values, to meet all benefit paying organization(s) reporting requirements and to ensure that the entitlements are not jeopardized by a beneficiary's resources exceeding regulatory limits.

(3) When a beneficiary does not have a representative payee, the agency or sponsoring agency must offer to assist with:

(i) reporting both earned and unearned income to benefit paying organization(s), as required;

(ii) reporting resource amounts to benefit paying organization(s), as required;

(iii) monitoring resource amounts to ensure that the beneficiary's entitlements are not jeopardized by having excess resources; and

(iv) reporting any changes that may affect a beneficiary's entitlements to benefit paying organizations, as required.

(4) When the facility director is not the representative payee, the agency or sponsoring agency must offer to manage the beneficiary's personal allowance. The offer must be in writing and made within ten (10) business days of the beneficiary's move or change of representative payee.

(f) Transfer of Funds. When a beneficiary moves to a new residence:

(1) If the beneficiary moves to a facility operated or sponsored by the same agency, the agency may retain all funds and the facility director will continue to serve as the beneficiary's representative payee unless, in accordance with subdivision (c) of this section, the beneficiary no longer needs a representative payee. Cash maintained on behalf of the beneficiary at the facility must be forwarded to the new residential facility.

(2) If the beneficiary moves to a facility operated or sponsored by another agency:

(i) Personal allowance funds derived from payments made by SSA must either be returned to SSA within 10 business days of the person's departure or, if specifically permitted by SSA, forwarded to the new representative payee. Encumbered funds will be retained by the agency and appropriately disbursed. Funds derived from other sources must be forwarded to the new representative payee within 10 business days of the person's departure. If funds derived from SSA have been combined with funds from other sources, then the amount returned to SSA must be the percentage of the current total that represents the SSA portion. The percentage must be calculated based on the historical payments received over the last six months from SSA and non-SSA sources.

(ii) The former agency must notify the successor representative payee in writing of the return of the beneficiary's funds to SSA immediately following such return or transfer of funds. The notification must include the amount returned or transferred and the date it was returned or transferred.

(iii) On or before the date of the move, the former agency must disburse to the new facility a sum equivalent to one month's minimum statutory personal allowance or the total of the person's funds, whichever is less, prior to returning to SSA the remainder (if any) of the person's funds that were derived from payments made by SSA;

(iv) The facility director of the new agency shall apply to the benefit paying agency to become the person's representative payee no later than ten (10) business days after the person's admission unless a determination has been made that the beneficiary no longer needs a representative payee;

(v) Upon the appointment of the facility director of the new agency as representative payee by the benefit paying agency and receipt of the person's accrued funds, the new agency shall consider the funds to be accrued personal allowance, except for any amount which is due and payable to the new agency for the provider payment(s) derived from the benefits at the time of the receipt of funds.

(vi) All funds in a burial reserve account, noted as such, regardless of the origin of the funds, shall be forwarded to the new representative payee within ten (10) business days of the beneficiary's discharge or change of representative payee.

(vii) Except for funds received from SSA, when the facility director of the former agency is the representative payee, the ongoing monthly personal allowance shall be forwarded to the successor representative payee within five (5) business days of receipt of the benefit check. This arrangement shall continue until a new payee is designated.

(g) Record Retention. Each agency or sponsoring agency must keep records documenting compliance with this section for four (4) years.

History

Reserved New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.19 Confidentiality and protective measures regarding the human immunodeficiency virus (HIV) infection (see glossary) and acquired immune deficiency syndrome (AIDS-see glossary) for a person admitted for service for any party proposed for admission

(a) Principles of compliance.

(1) It is the policy of OPWDD that any information about anyone applying for services or admitted and receiving services, is to be held in confidence. Any information obtained or to be disclosed is to be done so with the understanding that the information is confidential and is to be maintained exclusively for the purposes of program planning and the provision of competent and humane care to that individual. While the requirements of this section address the particular issues of access to person-specific HIV and AIDS information, it is the intent of OPWDD that no such information is to be discussed casually or capriciously. Such person-specific information should only be judiciously disclosed in accordance with law for the purposes of increasing the understanding of other care-givers about a person's needs and then only care-givers who have or will have responsibilities in addressing that person's needs.

(2) Each agency/facility and sponsoring agency for a family care home and its employees, volunteers, and contract agents and family care providers shall ensure the confidentiality of information in the possession of such agency/facility or sponsoring agency concerning whether that person admitted for service or anyone proposed for admission has been the subject of an HIV-related test (see glossary); or has HIV infection (see glossary), HIV-related illness (see glossary), or AIDS; or any information indicating a person's possible exposure to HIV.

(3) No one shall have access to HIV-related information (see glossary) unless he or she has access to clinical records in the ordinary course of business, has been trained in matters of confidentiality and related issues, and access to the HIV-related information is reasonably necessary under the following circumstances:

(i) To provide for the appropriate care and treatment of a person as described in his or her program plan except when the sole purpose of accessing the information is to monitor or limit behaviors that could result in significant risk (see glossary) contacts; and the program planning team, in consultation with the person, has determined that he or she exhibits the capacity and willingness to manage his or her behaviors so that the monitoring or limitations are not necessary.

(ii) In connection with an investigation of an alleged violation of a person's rights, including discrimination or abuse.

(iii) To fulfill a specific statutory duty.

(iv) In connection with a review of the quality of care rendered by an agency/facility or a family care provider.

(v) To determine eligibility for services or reimbursement of services by OPWDD or the medical assistance program (Medicaid).

(4) Each agency/facility or sponsoring agency shall protect the confidentiality of HIV-related information, whether in the form of records or computer data, which is maintained by or is transferred to authorized parties as defined by paragraph (2) of this subdivision. Employees, volunteers and family care providers shall be informed of and provided with the following written requirements:

(i) HIV-related information shall not be examined, removed or copied by any person unless authorized under paragraph (3) of this subdivision, 10 NYCRR Part 63, or article 27-F of the Public Health Law.

(ii) HIV-related information shall not be disclosed to or discussed with any party unless such party is authorized to access such information pursuant to article 27-F of the Public Health Law, 10 NYCRR 63.5 or paragraph (2) of this subdivision, and there is a need to do so.

(iii) The use of markers on the face of clinical files, lists posted on walls, or other codes or displays for the sole purpose of identifying persons with HIV infection is prohibited.

(iv) All disclosures, oral or written, except as identified in subparagraph (v) of this paragraph, shall be accompanied by this statement:

"This information has been disclosed to you from confidential records which are protected by State law. State law prohibits you from making any further disclosure of this information without the specific written consent of the person to whom it pertains, or as otherwise permitted by law. A general authorization for the release of medical or other information is not sufficient authorization for further disclosure. Any unauthorized further disclosure in violation of State law may result in a fine or jail sentence or both."

(v) All disclosures, oral or written, shall be noted in the clinical record except:

(a) Only initial disclosures to insurance institutions must be noted.

(b) Notation is not required for disclosure to agents or health care providers (see glossary) or health care facilities (see glossary) if:

(1) the agent or health care provider is authorized to access medical or clinical records;

(2) the health care facility or health care provider is authorized to obtain the HIV-related information; and

(3) the agent or health care provider provides general or specific health care to the protected individual, or maintains or processes medical records for billing or reimbursement.

(c) Notation is not required for persons engaged in quality assurance, program monitoring or evaluation, nor for governmental agents acting pursuant to contract or law.

(d) Confidential HIV-related information may be noted in a certificate of death, autopsy report or related documents prepared pursuant to Public Health Law, article 41 or other laws relating to documentation of cause of death.

(e) A protected person shall be informed of disclosures of HIV information upon request of that person.

(f) Confidential HIV-related information shall not be disclosable pursuant to Public Officers Law, article 6 (the Freedom of Information Law).

(vi) Violation of these confidentiality provisions may lead to disciplinary action, including suspension or dismissal from employment, and civil or criminal liability.

(5) Each agency/facility and sponsoring agency shall implement and enforce a program that will prevent the transmission of HIV infection, should a caregiver be exposed to the virus. Such a program shall include requiring sound and appropriate health care practices in the care of all persons, including:

(i) training for persons being served, staff, volunteers, and family care providers, on the use of protective equipment, preventive practices, and circumstances that constitute significant risk exposure;

(ii) appropriate training, counseling, and supervision of persons regarding behaviors which pose a risk for HIV transmission. Contact notification, when appropriate, shall be conducted in accordance with Public Health Law, section 2782(4) and 10 NYCRR 63.7;

(iii) training, counseling, and supervision of persons who may be in high risk sexual or other contact situations with others;

(iv) the use of accepted protective practices to prevent skin and mucous membrane exposure to blood, other body fluids, or other significant risk body substances (see glossary);

(v) the use of accepted preventive practices while handling instruments or equipment that may cause puncture injuries; and

(vi) the provision, as appropriate, of personal protective equipment which is of appropriate quality and quantity.

(6) Each agency/facility and sponsoring agency shall implement and enforce a program for the management of anyone who is exposed to blood, other body fluids or other significant risk body substances. Such program shall include:

(i) a system for voluntarily reporting all exposures thought to represent a circumstance for significant risk;

(ii) availability of services for evaluating the circumstances of a reported exposure and providing appropriate follow-up of anyone who has been exposed, which includes:

(a) medical and epidemiological assessment of anyone who is the source of the exposure, where that source is known and available;

(b) if epidemiologically indicated, HIV counseling and testing of the source as permitted under article 27-F of the Public Health Law. Where the HIV status is not known to anyone who has been exposed, disclosure can be made only with the express written consent of the source or pursuant to court order; and

(iii) assurances for protection of confidentiality for those involved in reported exposures.

(7) Each agency/facility or sponsoring agency shall ensure that no person being served or anyone proposed for services is discriminated against, abused or otherwise treated adversely because of his or her status as one who is the subject of an HIV-related test, or who is thought to be, or who is, HIV infected. Discrimination includes, but is not limited to, the denial of appropriate services, isolation or quarantine, or the restriction of rights as set forth in this Part, solely because the person or other party has or is thought to have HIV infection.

(b) Standards of certification.

(1) The agency/facility or sponsoring agency has written policies/procedures for maintaining the confidentiality of HIV-related information.

(2) OPWDD shall verify that the agency/facility or sponsoring agency has implemented a mechanism and/or procedures for the prevention of the transmission of HIV infection and for the management of anyone thought to be exposed under significant risk circumstances.

(3) OPWDD shall verify that the agency/facility or sponsoring agency has not engaged in any instances of discrimination against persons who have or are thought to have an HIV-related illness.

(4) OPWDD shall verify that employees, volunteers and family care providers are aware of the requirements regarding the confidentiality of HIV-related information and are knowledgeable regarding:

(i) procedures to prevent the transmission of an HIV-related illness; and

(ii) procedures to manage persons or others who are exposed to blood, other body fluids or other significant risk body substances.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.21 Administrative process applicable to persons who are subject to placement under Mental Hygiene Law section 13.38

(a) Principles of compliance.

(1) The provisions of this section and any administrative process associated with its implementation, shall be in conformance with article 13, section 13.38 of the Mental Hygiene Law.

(2) Upon making a determination that a person who is receiving care pursuant to section 13.37-a or section 13.38 (g) of the Mental Hygiene Law can be cared for appropriately in an available adult care facility or by a service that is licensed, certified or approved by OPWDD, and whose removal from a child care facility or residential school is not required on an expedited basis, OPWDD shall notify in writing the person and the person's guardian (if one has been appointed), or another individual who has been actively involved in the care of the person and who can represent the person's interest, of OPWDD's determination that the person can be appropriately cared for at an available placement providing residential care or by receiving another appropriate service(s) certified and/or funded by OPWDD (see subparagraph [6][i] of this subdivision regarding appropriate placement or plan of services). Such notification also shall provide a description of the proposed new placement or services.

(3)

(i) The written notification required pursuant to paragraph (2) of this subdivision shall be served at least 30 days prior to the date on which the proposed placement will be available; service by ordinary mail will be deemed effective on the fifth day after mailing. Such notification shall include information about the availability of an administrative appeal to review the determination if any of the notified parties do not agree with the determination, and of the need to request such appeal in writing within 30 days of service of the notice.

(ii) Any of the notified parties may request an administrative appeal by sending a written request to the commissioner and stating the reasons for the objection. If the request is made within the time period required, a hearing will be scheduled with no less than 10 days' notice to the objecting party. The hearing shall be before a hearing officer designated by the commissioner.

(4) If none of the notified parties request a hearing within the timeframe required, or if any requested hearing results in a determination that the proposed residential placement or other service(s) is appropriate to the needs of the person, and is available (see subparagraph [6][ii] of this subdivision), or will be available on a date certain, OPWDD shall discontinue care funding for the person as of a date certain.

(5) The hearing officer shall conduct the hearing and review the parties' presentations and information to determine whether the placement or services identified by OPWDD is appropriate to the needs of the person and is available or will become available on a date certain. The hearing officer shall send a written report and recommendation to the commissioner, and the commissioner or his or her designee shall issue a written determination to the objecting party within 30 days after the close of the hearing record, on whether the proposed placement is appropriate to the needs of the person and is available or will become available on a date certain. The commissioner may, in his or her discretion, send the matter back to the hearing officer for further review. The commissioner's determination shall be the final administrative remedy available and may be appealed in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

(6) Definitions relevant to this section.

(i) Appropriate placement or plan of services. The OPWDD's determination expressed in a written document, setting forth those adult services necessary to meet the essential needs of a person. Educational, child care, or other services received by a person in his or her current placement may be considered, but shall not be deemed to constitute the standard by which a proposed placement or plan of services is determined to be appropriate.

(ii) Available placement or plan of services. A placement or plan of services which can be provided to a person within 90 days of written notification by OPWDD, shall be deemed "available." In cases where a placement or plan of services cannot be provided to a person within 90 days, the placement or plan of services shall be deemed available if the hearing officer determines that such place or plan of services can be provided on a certain date.

(iii) Person/persons. As used herein, a person with a developmental disability, who is receiving OPWDD funding for care pursuant to section 13.37-a or section 13.38 (g) of the Mental Hygiene Law.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Part 635 General Quality Control and Administrative Requirements Applicable to Programs, services or Facilities Funded or Certified by the Office for People With Developmental Disabilities

Subpart 635-1 Background

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-1.1 Applicability

(a) This Part contains requirements applicable to programs, services or facilities (as specified herein) funded or certified by the Office for People With Developmental Disabilities, hereinafter referred to as OPWDD (see glossary).

(b) In a family care home, the sponsoring agency (see glossary) and the holder of the operating certificate shall be responsible for ensuring compliance with this Part as specified.

(c) This Part is controlling over any Part of 14 NYCRR insofar as the requirements herein may be concerned, unless said Part provides that it is controlling.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-1.3 Statutory authority

(a) Sections 13.01 and 13.07 of the Mental Hygiene Law authorize the Office for People With Developmental Disabilities to pursue expansion of services and develop new methods of service delivery to serve the full range of needs of persons with mental retardation and/or other developmental disabilities.

(b) Section 13.09 (b) of the Mental Hygiene Law grants the commissioner of OPWDD the authority to adopt rules and regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 13.39 of the Mental Hygiene Law requires that the executive director, chairperson or president of a voluntary not-for-profit corporation (see glossary) or facility, annually furnish the commissioner with an accurate list of the names and addresses of the current members of the governing body (see glossary) or trustees of such facility or corporation. The statute specifies that failure to furnish such annual list shall remove such facility or corporation from consideration for continued certification.

(d) Article 16 of the Mental Hygiene Law sets forth provisions enabling the commissioner of the OPWDD to regulation and assure the consistent high quality of services provided within the State to its citizens with developmental disabilities. The commissioner may adopt and promulgate any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by this Article.

(e) Section 16.03 of the Mental Hygiene Law prohibits any provider of service from engaging in the operation of a residential facility, including a family care home for the care, custody and treatment of persons with developmental disabilities without an operating certificate issued by the commissioner. Further, no party may engage in the operation of nonresidential or outpatient services operated for the primary purpose of serving those with developmental disabilities without an operating certificate from the commissioner.

(f) Section 16.05 of the Mental Hygiene Law provides that no operating certificate shall be issued by the commissioner unless the commissioner is satisfied that the premises, equipment, personnel, records and program are found to be adequate and appropriate to provide services for which an operating certificate is sought; and that such services will be provided in substantial compliance with applicable laws and regulations.

(g) Section 16.11 of the Mental Hygiene Law authorizes the commissioner or an authorized representative to conduct investigations and inspections and permits review of the facility and all its books and records.

(h) Section 16.13 of the Mental Hygiene Law requires holders of operating certificates issued by the commissioner to cooperate during such investigations by permitting review of the facility and all its books and records.

(i) Section 16.17 of the Mental Hygiene Law authorizes the commissioner to revoke, suspend or limit an operating certificate, or impose a penalty, upon a finding that the certificate holder has failed to comply with the terms of the operating certificate or with the provision of any applicable statute, rule or regulation. This section also authorizes the commissioner to temporarily suspend or limit an operating certificate following a finding that a person's health or safety is in imminent danger or there exist any conditions or practices which pose imminent danger to the health or safety of any person receiving services.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Subpart 635-4 Financial Reporting and Audit Requirements

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-4.1 Applicability and definitions

(a) This Subpart shall apply to all providers which provide one or more of the services listed in paragraph (b)(2) of this section.

(b) Definitions applicable to this Subpart.

(1) Provider for the purposes of this Subpart, provider shall mean an individual, corporation, partnership or other organization which provides one or more of the services listed in paragraph (2) of this subdivision. Provider shall not mean OPWDD or its local administrative units.

(2) Services for the purposes of this Subpart, services shall mean ICF/DD services (Intermediate Care Facilities for Persons with Developmental Disabilities), Comprehensive Health Home Care Management, Basic HCBS Plan Support, Crisis Services for Individuals with Intellectual and/or Developmental Disabilities, day treatment services, clinic treatment facilities (see Part 679 of this Title), and all HCBS waiver services.

(3) Region for the purposes of this Subpart, region shall mean any one of the three geographic regions which OPWDD considers in the applicable facility-specific and/or service-specific reimbursement methodology(ies), which are:

(i) Region I (NYC) is New York City and includes the counties of New York, Bronx, Kings, Queens and Richmond.

(ii) Region II (NYC Suburban) includes the counties of Putnam, Rockland, Nassau, Suffolk and Westchester.

(iii) Region III (Upstate New York) includes all other counties in New York State.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-4.2 Reporting requirements

(a) Financial reports shall include the following:

(1) Budget reports.

(i) Each provider which is applying for an operating certificate shall, if deemed necessary by OPWDD, include in its application budget information, in the form and format specified by OPWDD.

(ii) The budget shall cover a reporting period of 12 months from July 1st to the following June 30th for facilities in Region I, or from January 1st to the following December 31st (calendar year) for facilities in Regions II and III, unless OPWDD specifies another time frame.

(2) Cost reports.

(i) Each provider shall on an annual basis submit a cost report in the form and format specified by OPWDD.

(ii) The cost report shall cover a reporting period of 12 months, from July 1st to the following June 30th for providers in Region I and from January 1st to the following December 31st for providers in Regions II and III, unless OPWDD specifies another time frame.

(iii) A provider that delivers services both in Region I and Region II or III may apply to OPWDD to elect either a calendar year reporting period or a reporting period beginning July 1st, to correspond to the reporting period of the geographic location of the primary facility and/or administrative operations of the provider. Such application may be granted at the discretion of OPWDD.

(a) In absence of an application by the provider, OPWDD shall designate either a calendar year reporting period or a reporting period beginning on July 1st for that provider.

(b) OPWDD's selection and subsequent approval of a reporting period shall mean that all services delivered by that provider will be reported on that reporting period.

(iv) A provider whose reporting period has been designated by OPWDD may apply to OPWDD to be returned to either the calendar year reporting period or the reporting period beginning on July 1 to correspond to the reporting period of the geographic location of the primary program and/or administrative operations of the provider.

(b) Statistical reporting requirements for providers shall include, but not be limited to, the following:

(1) Each provider shall submit, with its cost report, statistical data relevant to program utilization in the form and format specified by OPWDD.

(2) Each provider shall, upon request of OPWDD, submit statistical data relevant to its administration and operations in the form and format specified by OPWDD. Such data shall be submitted within the timeframes stated in the request.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-4.3 Requirements for filing financial and statistical data

(a) Each provider shall complete the financial reports in accordance with generally accepted accounting principles, unless OPWDD specifies other principles.

(b) Budget reports submitted in accordance with this Subpart shall be certified for their fair representation of anticipated expenditures by the provider's chief executive officer.

(1) the chief executive officer of the provider; and

(2) a public accountant who is:

(i) licensed or certified;

(ii) registered with the New York State Education Department;

(iii) not on the staff of the provider;

(iv) has no financial interest in the provider; and

(v) is not a related party of the provider.

(d) Cost reports shall include a statement of the findings and opinion of the public accountant.

(e) Incremental cost data shall also be certified by the chief executive officer of the provider for compliance with this section.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-4.5 Requirements for financial records

(a) Each provider shall maintain service-specific financial records which reflect expenditures made and revenues received. These service-specific financial records shall be accounted for on either a program type or a site specific basis in order to correspond with the cost report form and format specified by OPWDD.

(b) Such financial records shall include, but not be limited to:

(1) salary and fringe benefit costs associated with the following categories: direct care, clinical, program administration, agency administration and support; and

(2) other than personal service program costs, such as housekeeping and maintenance costs, program support, housing, utilities, transportation, rent, equipment, costs of physical plant and amortization of leasehold improvements and related expenses.

(c) The financial records shall include separate accounts for each type of expense and revenue included in the budget or cost report. The provider may establish subaccount and control accounts as are necessary for meeting OPWDD's requirements for fiscal reporting and effective financial management.

(d) Record retention.

Providers must maintain all cost reports, budget reports, data and other reports submitted to OPWDD under this Subpart. Providers must also maintain all underlying records which formed the basis for or which support such reports and data submitted to OPWDD. The period of retention shall be as follows:

(1) Reports and data submitted to OPWDD, and underlying records, shall be kept for six years after the due date of the report or data, or the date the reports or data were submitted, whichever is later.

(2) If the reports and/or data were used to establish a rate/fee/price, the reports and/or data and underlying records shall be kept for six years from the date the rate/fee/price was established.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-4.6 Audits

(a) All records, reports and data shall be subject to audit for the period of time specified in section 635-4.5(d) of this Subpart.

(b) The six year limitation shall not apply in situations in which fraud may be involved or where the provider or its agent prevents or obstructs a State or Federal agency from performing an audit pursuant to this section.

(c) All such records, reports and data shall be subject to audit by OPWDD, the Office of the State Comptroller, the State Department of Health, and by the agencies of the Federal government as provided by law.

(d) Field audits or desk audits shall be conducted by OPWDD or the Department of Health at a time and place and in a manner to be determined by OPWDD or the Department of Health.

(e) Federal and State agencies may perform the audits on any records required to be maintained.

(f) Any finding of an audit described in this section shall constitute grounds for recoupment at the discretion of OPWDD, provided that such audit findings relate to the allowable costs, and to the extent that the audit finding has been upheld in a decision after a hearing or a hearing has not been requested on such finding.

(g) Administrative review (including hearings) of audits conducted to determine allowable Medicaid expenses and offsetting revenues shall be in accordance with 18 NYCRR Part 517.

(h) Administrative review of audits which are conducted by OPWDD, and which are not described in subdivision (g) of this section, shall be in accordance with the following:

(1) At the conclusion of the audit, the provider shall be afforded an opportunity to submit additional documentation to OPWDD. After the receipt and review of such additional documentation, a copy of the audit findings shall, within 120 days, be sent to the provider by certified mail, return receipt requested. In order to have the additional documentation considered, the provider must submit the documentation within the time specified.

(2) The audit findings shall become final unless, within 30 days of receipt thereof, the provider requests an administrative review of the audit findings.

(3) The provider must send a request for administrative review of audit findings to OPWDD by certified mail, return receipt requested.

(4) Such requests shall contain a detailed statement of the provider's objections to the findings, along with copies of any documentation the provider wishes to submit.

(5) The provider shall be notified in writing of the determination on those items to which the provider objected, including a statement of the reasons for the determination. The audit findings, as adjusted in accordance with the determination after administrative review, shall be final.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Subpart 635-6 Allowability of Capital Costs and Costs of Transactions with Related Parties

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.1 Applicability

(a) This Subpart shall apply to all services and programs which are funded by OPWDD.

(b) This Subpart contains rules for:

(1) the allowability of capital costs, pursuant to transactions with related and unrelated parties;

(2) the allowability of costs of capital moveable and personal property obtained from related and unrelated parties, other than capital moveable equipment and personal property of an IRA or group day habilitation program; and

(3) the allowability of goods, services and other property obtained from related parties.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.2 Determination of whether a transaction is between related parties (see glossary, Subpart 635-99 of this Part)

(a) Where a transaction is not presumed to be between related parties under subdivisions (b) or (d) of this section, OPWDD will determine whether the transaction is between related parties.

(1) Such determination shall be made on a case-by-case basis.

(2) Such determination shall be based on whether the facts and circumstances of the transaction, the parties' situation and history, indicate that the party from whom the provider or individual receiving services obtained the real property, equipment, goods, services or property is a related party.

(3) If a transaction is between a provider (see glossary, Subpart 635-99 of this Part) or individual receiving services and a party not presumed to be a related party (under subdivision [b] or [d] of this section, OPWDD nevertheless can determine that the transaction is between related parties (using the criteria in paragraph [2] of this subdivision), where the party transacting with the provider or individual receiving services directly or indirectly obtained the real property, equipment, goods, services or property in question from someone or an organization (see glossary, Subpart 635-99 of this Part) presumed to be related to the provider or individual (under subdivision [b] or [c] of this section).

(b) The existence of any of the conditions in paragraphs (1) through (6) of this subdivision will create a presumption that the transaction is between a provider and a related party.

(1) The provider is a partnership and the other party to the transaction is a partner of the provider.

(2) The provider is a corporation and the other party to the transaction is an officer, director, trustee, principal stockholder (see glossary, Subpart 635-99 of this Part) or controlling party (see glossary, Subpart 635-99 of this Part) of the provider.

(3) The provider is a corporation and the other party to the transaction is a corporation, where someone is an officer, director, trustee, principal stockholder or controlling party of both corporations.

(4) The provider is a natural person and the other party to the transaction is either:

(i) a member of the provider's immediate family (see glossary, Subpart 635-99 of this Part);

(ii) a partnership in which the provider is a partner;

(iii) a co-partner (see glossary, Subpart 635-99 of this Part) of the provider;

(iv) a corporation in which the provider is an officer, director, trustee, principal stockholder or controlling party;

(v) a corporation in which a member of the provider's immediate family is an officer, director, trustee, principal stockholder or controlling party;

(vi) a corporation in which any partnership in which the provider is a partner is a principal stockholder;

(vii) a corporation in which a co-partner of the provider is an officer, director, trustee, principal stockholder or controlling party; or

(viii) a corporation in which another corporation is a principal stockholder, where the provider is an officer, director, trustee, principal stockholder or a controlling party of such other corporation.

(5) The provider is an unincorporated association and the other party to the transaction is either:

(i) someone who is a member of the provider;

(ii) someone, a member of whose immediate family is a member of the provider;

(iii) a partnership in which one partner is a member of the provider;

(iv) a corporation in which a member of the provider is an officer, director, trustee, principal stockholder or controlling party;

(v) a corporation in which a member of the provider has an immediate family member who is an officer, director, trustee, principal stockholder or controlling party;

(vi) a corporation in which any partnership, in which a member of the provider is a partner, is a principal stockholder;

(vii) a corporation in which a co-partner of a member of the provider is an officer, director, trustee, principal stockholder or controlling party; or

(viii) a corporation in which another corporation is a principal stockholder, where a member of the provider is an officer, director, trustee, principal stockholder or a controlling party of such other corporation.

(6) The other party to the transaction is a special purpose organization (see glossary, Subpart 635-99 of this Part).

(1) the other party to the transaction in question is a bona fide separate organization;

(2) a substantial part of the other party's business activity of the type carried on with the provider is transacted with other organizations or those not related to the provider and the other party by common ownership or control and there is an open, competitive market for the type of real property, equipment, goods, services or property furnished by the other party;

(3) the real property, equipment, goods, services or properties are those which commonly are obtained by organizations such as the provider from other organizations and are not a basic element of care ordinarily furnished directly to individuals receiving services from such programs; and

(4) the charge to the provider is comparable to the charge for such real property, equipment, goods, services or property in the open market and no more than the charge made under comparable circumstances to others by the other party to the transaction for such real property, equipment, goods, services or property.

(d) The existence of any of the conditions in paragraphs (1) through (5) of this subdivision will create a presumption that the transaction is between an individual receiving services and a related party.

(1) The other party to the transaction is a member of the individual's immediate family.

(2) The other party to the transaction is a partnership in which the individual or a member of the individual's immediate family is a partner.

(3) The other party to the transaction is a corporation in which the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or controlling party.

(4) The other party to the transaction is a corporation in which:

(i) any partnership, in which the individual or a member of the individual's immediate family is a partner, is a principal stockholder; or

(ii) another corporation is a principal stockholder, where the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or controlling party of such other corporation.

(5) The other party to the transaction is an unincorporated association which has as a member either:

(i) the individual;

(ii) a member of the individual's immediate family;

(iii) a partnership in which the individual or a member of the individual's immediate family is a partner;

(iv) a corporation in which the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or controlling party;

(v) a corporation in which any partnership, in which the individual or a member of the individual's immediate family is a partner, is a principal stockholder; or

(vi) a corporation in which another corporation is a principal stockholder, where the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or a controlling party of such other corporation.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.3 Leases for real property

(a) This subdivision applies to allowability of costs for leases for real property except for continuing residential lease arrangements as specified in subdivision (b) of this section.

(1) In order for lease costs to be considered for allowability, the provider or individual lessee must submit the lease to OPWDD for approval. In deciding whether to approve a lease, OPWDD shall consider whether the lease is in the best interests of the programs and the persons it serves and whether the lease in any way violates public policy. In deciding whether to approve an amount for rent, OPWDD shall consider whether the provider's rate, fee or price, as a whole, including the amount of rent to be approved, would result in payment which is consistent with efficiency and economy.

(2) If an approved lease (see glossary, Subpart 635-99 of this Part) or approved proprietary lease (see glossary, Subpart 635-99 of this Part) is between the provider or individual lessee and a party which is not a related party, allowable lease costs shall be the lesser of contract rent or fair market rent.

(3) If an approved lease or approved proprietary lease is between the provider or individual lessee and a related party, allowable lease costs shall be the least of:

(i) contract rent (see glossary, Subpart 635-99 of this Part);

(ii) fair market rent (see glossary, Subpart 635-99 of this Part); or

(iii) the landlord's net cost (see glossary, Subpart 635-99 of this Part).

(4) The commissioner may waive the limitations on allowable costs as stated in paragraph (3) of this subdivision upon a showing that such limitations would jeopardize the opening or continued operation of the program or services and that the negotiations for the lease or proprietary lease were conducted as though the parties were not related.

(5) The commissioner may, upon application from a provider, allow lease costs in an amount equal to contract rent and greater than fair market rent if all of the conditions in subparagraph (i) or (ii) of this paragraph are met.

(i) The commissioner will allow such lease costs only for as long as it is necessary for the provider to relocate the program or services located on the lease property; and

(a) the lease is a renewal that is not pursuant to an option to renew;

(b) the lease is a renewal of a lease for an existing program or services; and

(1) the provider has made diligent efforts to negotiate a lease renewal for fair market rent or less;

(2) the provider has been unable to negotiate a lease renewal for less than the current rent;

(3) the parties to the lease renewal are not related; and

(4) allowance of lease costs in the amount of contract rent is necessary to ensure the continued operation of the program or services; or

(ii) A substitute provider (see section 635-99.1[bp] of this Part) is designed to operate the program at the same physical location, and OPWDD determines that allowing such lease costs:

(a) is an economic and efficient use of resources; and

(b) is necessary to protect the health, safety, or welfare of the persons who are receiving or will receive services at the facility or program in question.

(6) Contract rent incurred pursuant to an approved lease or approved proprietary lease which is renewed pursuant to an option to renew is allowable.

(7) Costs incurred pursuant to an approved lease or approved proprietary lease which is renewed other than pursuant to an option to renew (see glossary, Subpart 635-99 of this Part) shall be allowable as follows:

(i) If the lease is between parties who are not related, allowable costs are determined in accordance with paragraph (2) of this subdivision.

(ii) If the lease is between parties who are related, allowable costs are determined in accordance with paragraph (3) of this subdivision.

(iii) OPWDD shall decide whether to approve any such renewal at least 30 days before the last day the lease may be renewed, if the provider or individual lessee has notified OPWDD in accordance with subparagraph (iv) of this paragraph.

(iv) Whenever possible, the provider or individual lessee shall submit to OPWDD a request for approval of lease renewals at least 120 days prior to the last date for renewing the lease.

(b) This subdivision governs the allowability of lease costs applicable to continuing residential lease arrangements for periods after December 31, 2011, for which periods OPWDD has not approved lease costs for an entire calendar year. This subdivision applies to residential lease renewals which are not renewals pursuant to an option to renew.

(1) There shall be an allowable lease cost, exclusive of any ancillary costs, for an entire calendar year. The allowable lease cost, exclusive of any ancillary costs, for a calendar year shall be the base lease amount for such calendar year adjusted by an annual percentage for such calendar year.

(2) Base lease amount. The base lease amount for a calendar year shall be the allowable lease cost calculated in accordance with this section in effect on December 31st of the prior calendar year, exclusive of any ancillary costs (see paragraph [3] of this subdivision).

(3) Ancillary costs. Ancillary costs are those charges identified in a lease in addition to monthly rent. These include but not limited to: special assessments, taxes, co-op or condominium maintenance fees, utility payments assessed by the lessee by the lessor pursuant to the terms of the lease, and lessor-financed renovations billed as additional rent.

(4) For ancillary costs under the terms of the lease to be allowable the lessee must submit an application to OPWDD specifying the nature and amounts of the ancillary costs. OPWDD may approve or disapprove the request or adjust the amount to be reimbursed based on whether the ancillary costs are reasonable and necessary.

History

Amended, New York State Register, Volume XXXVI, Issue 31, effective 8/6/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.5 Costs of co-operative (see glossary, Subpart 635-99 of this Part) ownership of real estate

(a) If an agreement to purchase membership or ownership interest in a co-operative, which agreement has been approved by OPWDD and the New York State Division of Budget, is between the provider or an individual and a party which is not a related party, allowable costs shall be the lesser of the actual purchase price or the price of a membership or ownership interest in a co-operative for real estate with similar functions in the same geographic area.

(b) If an agreement to purchase membership or ownership interest in a co-operative, which agreement has been approved by OPWDD and the New York State Division of Budget, is between the provider or an individual and a related party, allowable costs for such purchase shall be the least of:

(1) the actual purchase price;

(2) the price of membership or ownership interest in a co-operative with similar functions in the same geographic area; or

(3) the co-operative's costs attributable to the provider or individual.

(c) The allowable cost of purchasing membership or ownership interest in a co-operative shall be amortized over 15 years, or the term of the mortgage given by the provider or individual, whichever is greater.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.6 Moveable equipment and personal property

(a) Costs of ownership of moveable equipment and personal property shall be allowable in the amount of depreciation and interest if the purchase is made through a multiple bid process. Depreciation shall be based upon the historical cost and useful life.

(1) If the equipment or personal property is purchased from a party not related to the provider or individual, the historical cost shall be the lesser of the actual cost of purchasing the equipment or personal property or the fair market value of such equipment or personal property.

(2) If the equipment or personal property is purchased from a party related to the provider or the individual, the historical cost shall be the least of:

(i) actual acquisition cost;

(ii) fair market value; or

(iii) the seller's cost.

(3) The useful life is the higher of the reported useful life or the useful life as reported in the Estimated Useful Lives of Depreciable Hospital Assets, (2004 edition), published by Health Forum, Inc., an American Hospital Association company, One North Franklin, 28th Floor, Chicago, IL 60606-3421. A provider or individual may use a different useful life if such different useful life is approved by OPWDD. OPWDD shall base such approval upon historical experience and documentary evidence.

(4) The provider or individual shall use the straight-line, double declining balance or sum-of-the-years' digits depreciation method. Once selected, the depreciation method shall remain constant for the useful life of the asset.

(b) Costs of leasing moveable equipment and personal property shall be allowable as follows:

(1) If lease payments are made to a party which is not a related party, allowable costs shall be the lesser of:

(i) actual lease payments; or

(ii) fair market rental.

(2) If lease payments are made to a related party, allowable costs shall be the least of:

(i) actual lease payments;

(ii) fair market rental; or

(iii) allowable depreciation, the associated interest expense, if any, and other related expenses, including, but not limited to, maintenance costs.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.7 Costs applicable to goods, services or property not covered elsewhere in this Subpart

(a) Costs applicable to goods, services or property not covered elsewhere in this Subpart and furnished to the provider or individual by a related party shall be allowable at the lesser of:

(1) the cost to the related party; or

(2) the price of comparable goods, services or properties that could be obtained elsewhere.

(b) Interest on working capital indebtedness in accordance with section 635-6.4(f) of this Subpart are allowable. In the event that a loan is not in accordance with the standards listed in section 635-6.4(f) of this Subpart, the need for such loan shall be demonstrated in writing to the commissioner, and the express written approval of the commissioner is required.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Subpart 635-7 Environmental Requirements

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-7.1 Building codes (see glossary) and occupancy classifications for all facilities other than family care homes (see glossary)

(a) In furtherance of the mandate of the New York State Uniform Fire Prevention and Building Code (hereafter referred to as the Uniform Code), any building or premises under the custody, supervision or jurisdiction of a department or agency of the State of New York shall comply with the Uniform Code. The occupancy classifications and requirements as specified in subdivision (h) of this section are hereby established as applicable to the premises, buildings and equipment of any facility certified or operated by or under the auspices of the Office for People With Developmental Disabilities.

(b) As set forth in section 381 of the Executive Law, the State's cities, towns and villages shall be responsible for administering and enforcing the appropriate section of the 2002 edition of the New York State Uniform Fire Prevention and Building Code as designated for a class of facility in subdivision (h) of this section, where the buildings, premises and equipment are owned or leased by parties or entities other than the State of New York, its departments, agencies or offices. In the City of New York, the building code of the City of New York shall be administered and enforced by the city as to such facilities. Said codes are available as follows:

(1) Outside the City of New York. The code is published by the New York State Department of State, 41 State Street, Albany, NY 12231-0001; or is available for review during business hours and by appointment at the following locations:

(i) the Department of State, Division of Administrative Rules, 41 State Street, Albany, NY 12231-0001; and

(ii) the Office for People With Developmental Disabilities, Attention: Public Access Officer, 44 Holland Avenue, Albany, NY 12229.

(2) In the City of New York. The code is published by the City Record, 2208 Municipal Building, New York, NY 10007; or is available for review during business hours and by appointment at the following locations:

(i) the Department of State, Division of Administrative Rules, 41 State Street, Albany, NY 12231-0001; and

(ii) the Office for People With Developmental Disabilities, Attention: Public Access Officer, 44 Holland Avenue, Albany, NY 12229.

(c) Pursuant to 19 NYCRR Parts 1201 and 1204, OPWDD shall be accountable for administration and enforcement of the appropriate section of the Uniform Code as designated in subdivision (h) of this section with respect to these facilities where the buildings, premises and equipment are owned or leased by the State of New York, and its departments, agencies or offices.

(d) With respect to all facilities to which the Uniform Code or the Building Code of the City of New York is applicable, the appropriate code shall be administered, enforced, varied or modified as provided therein, as well as by the NYS Department of State's rules and regulations and the requirements set forth in this Part.

(e) An applicant for an operating certificate shall confirm that the building in which the facility is located satisfies OPWDD's conditions by:

(1) a certificate of occupancy, or equivalent, which documents the building's compliance with the 2002 edition of the Uniform Code or compliance with the 1984 edition of the Uniform Code or, where applicable, the building's compliance with the 1968 edition of the Building Code of the City of New York; or

(2) if the applicant is unable to obtain such a certificate or equivalent, a signed report from a New York State registered architect or licensed engineer that describes the building's compliance with applicable Uniform Code requirements; or

(3) in a building which pre-existed the January 1, 1984 implementation of the Uniform Code or the 1968 Building Code of the City of New York that is to be utilized as one of the following facilities, a signed report from a New York State licensed architect or engineer that documents the use of the 2002 edition of the Uniform Code as a comparable standard to assure the safety of the building. In addition, the report shall document that the building also meets the applicable requirements as follows:

(i) supervised individualized residential alternative (IRA) (see section 635-99.1 of this Part for residence, community) for eight or fewer persons: See section 635-7.2(a)(1)(iii) of this Subpart;

(ii) supportive IRA (see section 635-99.1 of this Part for residence, community): chapter 32 (new) or 33 (existing) of the National Fire Protection Association (NFPA) 101, Life Safety Code, 2000 edition (see section 635-7.2 of this Subpart), Board and Care, Prompt Category;

(iii) day habilitation site (see section 635-99.1 of this Part): NFPA 101, Life Safety Code, 2000 edition, Business Occupancy.

(f) It is recognized that building codes are constantly being reviewed and revised as building techniques and technology are developed and perfected. These changes potentially will have a bearing on increasing health and safety factors for occupants. As it is the intent of OPWDD to encourage a safe environment, providers are encouraged, but not necessarily required, to respond to these changes in building codes with appropriate modifications to the facility's physical plant. Facilities by virtue of previous compliance with the 1984 Uniform Code shall not be required to meet the 2002 edition of the Uniform Code unless modifications to the building are such as to require such compliance.

(g) If any physical plant modifications are initiated that are subject to the building codes in effect at the time of receipt of the permit for such modification or any requirements of this section, the provider shall notify the local Developmental Disabilities services Office (DDSO) and the appropriate designee in the OPWDD Division of Quality Assurance in writing of the proposed changes. Once the project is complete, the facility shall maintain documentation that such changes are in compliance with all applicable building codes and related guides. Subsequent to such modifications, recertification shall be subject to compliance with the applicable building code, unless an exemption is requested and granted in conformance with the Uniform Code or the Building Code of the City of New York and applicable Department of State rules and regulations.

(h) For the purposes of the administration and enforcement of the Uniform Code by the authority having jurisdiction, the following occupancy classifications or designations shall apply to the specified classes of facility. Nothing herein precludes OPWDD from requiring additional Uniform Code based requirements beyond the requirements represented by the following facility specific occupancy classifications.

(1) Residential facilities.

(i) Intermediate care facility for persons with developmental disabilities (ICF/DD):

(a) A facility serving 1-14 persons (a family unit pursuant to section 41.34 of the Mental Hygiene Law).

(1) Where the facility is located in a one- or two-family dwelling (see section 635-99.1 of this Part), either:

(i) Residential Code; or

(ii) Classification R-3 if the facility does not comply with the requirements of the Residential Code.

(2) Classification R-2. Where the facility is located in a multiple dwelling.

(b) A facility serving 15 or more persons. Classification R-2.

(ii) Community residence (including all IRAs).

(a) A facility serving 1-14 persons (a family unit pursuant to section 41.34 of the Mental Hygiene Law):

(1) Where the facility is located in a one- or two-family dwelling, either:

(i) Residential Code; or

(ii) Classification R-3 if the facility does not comply with the requirements of the Residential Code.

(2) Classification R-2. Where the facility is located in a multiple dwelling.

(b) A facility serving 15 or more persons. Classification R-2.

(iii) Specialty hospital. Classification I-2 Institutional.

(iv) Private school (including integrated residential communities as defined in section 27.2[g] of this Title).

(a) A facility serving 1-14 persons (a family unit pursuant to section 41.34 of the Mental Hygiene Law).

(1) Where the facility is located in a one- or two-family dwelling either:

(i) Residential Code; or

(ii) Classification R-3 if the facility does not comply with the requirements of the Residential Code.

(2) Classification R-2. Where the facility is located in a multiple dwelling.

(b) A facility serving 15 or more persons. Classification R-2.

(v) Developmental center (see section 635-99.1 of this Part).

(a) A building serving 1-14 persons.

(1) Where the building is located in a one- or two-family dwelling, either:

(i) Residential Code; or

(ii) Classification R-3 if the facility does not comply with the requirements of the Residential Code.

(2) Classification R-2. Where the building is located in a multiple family dwelling.

(b) A building serving 15 or more persons. Classification R-2.

(c) A building, or a part thereof, where OPWDD has determined the need for this classification, based upon the number and/or the capabilities and the service needs of the occupants. Classification I-2.

(2) Nonresidential facilities.

(i) Clinic treatment facility. Classification B; Business.

(ii) Day training facility. Classification B; Business. A sheltered workshop certified as a day training facility. Classification F; Factory.

(iii) Day treatment facility. Classification B; Business.

(iv) Day treatment programs may be operated within the same space as a certified day training or sheltered employment program and shall be considered the same occupancy for the purpose of occupancy classification as the day training/sheltered employment program if:

(a) all occupants of the day treatment setting can evacuate the site totally to a point of safety in less than 13 minutes. Examples of points of safety are exiting the building; exiting to another fire/smoke zone separated from all other space by floors, horizontal exits or smoke barriers, all of which have direct exits to the exterior of the building to a public way; and

(b) the day treatment setting occupies 30 percent or less of the certified day training/sheltered employment program's total gross square footage.

(v) Diagnostic and research clinic facility (see section 635-99.1 of this Part). Classification B; Business.

(i) For purposes of the administration and enforcement of the Building Code of the City of New York by the authority having jurisdiction, the following occupancy classifications shall apply to the specified facilities.

(1) Residential facilities.

(i) Intermediate care facility for persons with developmental disabilities (ICF/DD):

(a) A facility serving 1-14 persons (a family unit pursuant to section 41.34 of the Mental Hygiene Law):

(1) Classification J-3. Where the facility is located in a one- or two-family dwelling.

(2) Classification J-2. Where the facility is located in a multiple dwelling.

(b) A facility serving 15 or more persons. Classification J-2.

(ii) Community residence (including all IRAs).

(a) A facility serving 1-14 persons (a family unit pursuant to section 41.34 of the Mental Hygiene Law):

(1) Classification J-3. Where the facility is located in a one- or two-family dwelling.

(2) Classification J-2. Where the facility is located in a multiple dwelling.

(b) A facility serving 15 or more persons. Classification J-2.

(iii) Specialty hospital. Classification H-2.

(iv) Private school (including integrated residential communities as defined in section 27.2[g] of this Title).

(a) A facility serving 1-14 persons (a family unit pursuant to section 41.43 of the Mental Hygiene Law).

(1) Classification J-3. Where the facility is located in a one- or two-family dwelling.

(2) Classification J-2. Where the facility is located in a multiple dwelling.

(b) A facility serving 15 or more persons. Classification J-2.

(v) Developmental center.

(a) A building serving 1-14 persons.

(1) Classification J-3. Where the building is located in a one- or two-family dwelling.

(2) Classification J-2. Where the building is located in a multiple dwelling.

(b) A building serving 15 or more persons. Classification J-2.

(2) Nonresidential facilities.

(i) Clinic treatment facility. Classification E; Business.

(ii) Day training facility. Classification E; Business. A sheltered workshop certified as day training facility. Classification D-2; Industrial.

(iii) Day treatment facility. Classification E; Business.

(b) the day treatment setting occupies 30 percent or less of the certified day training/sheltered employment program's total gross square footage.

(v) Diagnostic and research clinic facility. Classification E; Business.

(j) Those facilities certified or recertified prior to promulgation of this Subpart have, by virtue of such certification or recertification, demonstrated compliance with building code requirements for the purposes of certification by OPWDD. Any exemptions (including those formerly referred to as "waivers") granted for purpose of issuing an operating certificate, shall continue in effect until rescinded in writing by the commissioner for cause.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-7.2 Life Safety Code requirements

(a) For purposes of obtaining an operating certificate, the following Life Safety Code requirements must be met by the herein specified facility class in addition to the various building code provisions set forth in section 635-7.1 of this Subpart.

(1) Residential facilities.

(i) Intermediate care facility for persons with developmental disabilities (ICF/DD): chapter 32 (new) or 33 (existing), Residential Board and Care Occupancies, of the National Fire Protection Association (NFPA) 101 Life Safety Code, 2000 edition, or chapter 18 (new) or 19 (existing) Health Care Occupancies of the NFPA 101 Life Safety Code, 2000 edition.

(ii) Supervised community residence initially certified or granted certification of need and approval for construction subsequent to September 1, 1985 and individualized residential alternatives (IRAs) housing nine or more persons: chapter 32 (new) or 33 (existing), Residential Board and Care Occupancies, of the NFPA 101 Life Safety Code, 2000 edition, or chapter 18 (new) or 19 (existing) Health Care Occupancies of the NFPA 101 Life Safety Code, 2000 edition.

(iii) Supervised individualized residential alternatives (IRAs) for eight or fewer people in which the occupants cannot be evacuated in three minutes or less: chapter 33 (existing), Residential Board and Care Occupancies, of the NFPA 101 Life Safety Code, 2000 edition, or chapter 19 (existing) Health Care Occupancies of the NFPA 101 Life Safety Code, 2000 edition. This requirement applies to both new and existing IRAs.

(iv) Private school (including an integrated residential community):

(a) A facility serving 15 or fewer persons with the ability to evacuate said facility in less than 2.5 minutes. Chapter 11, Residential Occupancies, of the NFPA 101 Life Safety Code, 1973 edition.

(b) A facility serving more than 15 persons or where one or more persons are unable to evacuate said facility in less than 2.5 minutes. Chapter 10, Institutional Occupancies, of the NFPA 101 Life Safety Code, 1973 edition.

(c) Any private school residential facility or residential building constructed after April 1, 2008. Chapter 32 (new), Residential Board and Care Occupancies, of the NFPA 101 Life Safety Code, 2000 edition.

(v) Specialty hospital. Chapter 18 (new) or 19 (existing) Health Care Occupancies, of the NFPA 101 Life Safety Code, 2000 edition.

(vi) Developmental center. Chapter 32 (new) or 33 (existing), Residential Board and Care Occupancies, of the NFPA 101 Life Safety Code, 2000 edition, or chapter 18 (new) or 19 (existing) Health Care Occupancies, of the NFPA 101 Life Safety Code, 2000 edition.

(2) Nonresidential facilities. Day treatment facility and diagnostic and research clinic facility (stand alone/freestanding). Chapter 20 (new) or 21 (existing) Ambulatory Health Care Occupancies, of the NFPA 101 Life Safety Code, 2000 edition. Clinic treatment facility. No Life Safety Code requirements. Day training facility (including collocated day treatment, section 635-7.1[h][2][iv] and [i] [2][iv] of this Subpart. No Life Safety Code requirements. A sheltered workshop certified as a day training facility (including collocated day treatment - section 635-7.1[h][2][iv] and [i] [2][iv] of this Subpart). No Life Safety Code requirements.

(b) For purposes of the issuance of an operating certificate, the commissioner may modify application of specific provisions of this section to any facility for such periods as deemed appropriate. However, this shall occur only if strict application of the provisions would result in unreasonable hardship upon the facility. Then such modifications shall be made only if there is acceptable documentation in the form of a licensed architect's/engineer's report that such modifications do not adversely affect the health and safety of the individuals receiving services in said facility. Any exemptions (including those formerly referred to as "waivers") shall continue in effect until rescinded in writing by the commissioner for cause.

(c) The following requirements apply to those supervised community residences initially certified or granted certification of need of approval for construction prior to September 1, 1985:

(1) All people in residence can evacuate the facility in 2.5 minutes or less, with or without verbal and/or physical prompts (see section 686.99 of this Title) for those facilities which do not meet the requirements of chapter 32 (new) or 33 (existing) of the Life Safety Code (paragraph [a][1] of this section).

(2) For those facilities which cannot document total person evacuation from the sleeping areas in 2.5 minutes or less, the facility has an established and documented E-score for the facility.

(3) If an E-score is maintained by the facility, the agency/facility shall comply within its policies and procedures for maintaining an acceptable E-score and a level of evacuation difficulty, as described in NFPA 101A, Guide on Alternative Approaches to Life Safety, 2001 edition that is based on the actual mix of people being served and the staffing pattern for such facility.

(4) If an E-score is maintained by the facility, there are written policies and procedures evaluating an applicant's effect on the facility's E-score prior to admission.

(d) The Life Safety Code and Guide on Alternative Approaches to Life Safety are available from the National Fire Protection Association, One Batterymarch Park, Quincy, MA 02169-7471; or are available for review during business hours and by appointment at the following locations:

(1) the Department of State, Division of Administrative Rules, 41 State Street, Room 330, Albany, NY 12231-0001; and

(2) the Office for People With Developmental Disabilities, Attention: Public Access Officer, 44 Holland Avenue, Albany, NY 12229.

(e) For an ICF/DD apply 42 CFR 483.470.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-7.5 Physical plant, environmental and certification requirements for site based day habilitation and for site based prevocational services sites established on and after September 1, 2016

(a) Any building or space purchased or leased for the purpose of the delivery of day habilitation services or site based prevocational services through the home and community-based services (HCBS) waiver shall be certified pursuant to the requirements of section 16.05 of the Mental Hygiene Law.

(b) The requirements associated with the Certification of Need (CON) application and approval process as set forth in Part 620 of this Title shall be applicable to any day habilitation site or site based prevocational services site for which an operating certificate will be issued pursuant to this section.

(c) An operating certificate for such building or space may only be issued to the entity that is also the authorized provider (section 635-10.1[b] of this Part) of the HCBS waiver day habilitation services (see section 635-10.4[b][2] of this Part) or site based prevocational services (see section 635-10.4[k]) to be provided at the site.

(d) The following physical plant requirements must be met for the certification of day habilitation sites or site based prevocational services sites:

(1) The applicable nonresidential environmental requirements found in this Subpart, sections 635-7.1 and 635-7.3.

(2) For purposes of the administration and enforcement of the Uniform Code, or the Building Code of the City of New York, by the authority having jurisdiction, the following occupancy classifications shall apply to the specific site.

(i) If the existing occupancy classification meets the intended use of the site, the classification shall remain.

(ii) Where the commissioner determines that the existing occupancy classification of the premises does not meet the intended use for the services to be provided, or the premises are not subject to an existing classification, the occupancy classification to be applied shall be B (Business), outside of New York City, and Classification E (Business) in the City of New York.

(3) Nothing herein precludes OPWDD from requiring additional safety requirements based on the individualized safety needs of the persons receiving services at the site.

(e) An evacuation and safety plan specific to the certified premises shall be developed and implemented that is designed with consideration of the capabilities of the persons receiving services, the staffing of the premises, and the physical plant configuration. A description of the evacuation and safety training for individual participants and staff shall be included in the plan.

(f) Unless the building is fully sprinklered, each certified site shall be equipped with interconnected, hardwired smoke detection and alarm devices to assure early notification of the certified site. At a minimum, the devices shall be installed in required exit ways from the certified space.

(g) When a day habilitation site or site based prevocational services site is financed with a Dormitory Authority of the State of New York (DASNY) loan granted pursuant to the provisions of Part 621 of this Title, the certificate holder shall, throughout the term of the loan:

(1) be the primary provider of day habilitation services or site based prevocational services at the site; and

(2) project and generate income or other receivables for such day habilitation services or site based prevocational services at the site, in the form of State reimbursement for such holder, in an amount adequate and sufficient to meet the amount of the monthly debt service payable under a DASNY loan obtained by it, or obtained jointly by it in conjunction with a related holding company as owner of the site, for the purposes of financing or refinancing capital costs associated with such site.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Provision of Required Supplies and services Provision of Required Supplies and services

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-9.2 Requirements for nonresidential facilities

(a) Principles of compliance.

(1) Nonresidential facilities shall assume the cost of:

(i) Any item or service for which local, State, or Federal funds are provided; or for which reimbursement is made through a rate, fee, or grant-in-aid.

(ii) All staff personal service costs and staff expenses incurred in the provision of services and activities which are specified in a person's plan of service or are part of the facility's recreational program.

(iii) Physical plant maintenance and improvements.

(iv) All utilities including heat, light, power, water and sewer.

(v) The purchase, operation and/or maintenance of all equipment, furniture, or supplies necessary to operate the facility in accordance with the regulations for the class of facility or any other applicable regulations.

(vi) Special equipment necessary to meet the developmental needs of persons at the facility.

(vii) Environmental adaptations made to the facility to meet the needs of persons while there.

(viii) Any item required to meet treatment needs at the facility as specified in a person's plan of services.

(ix) Damage caused by a person other than the portion of the expense:

(a) Covered by insurance.

(b) Received from a person as part of a meaningful restitution process as devised by the program planning team, approved in writing by the person's payee, if any, and approved by a committee, or part thereof, charged with protecting the rights of the person at the nonresidential facility.

(x) Nonresidential facilities providing day treatment and day habilitation services shall assume the cost of service which:

(a) are necessary to meet the needs of individuals while attending their programs; and

(b) prior to August 1, 2004 could have been met by home health aide or personal care services separately billed to Medicaid.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Provision of Home and Community-Based Waiver Services Provision of Home and Community-Based Waiver Services

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-10.1 Applicability

(a) This Subpart contains requirements and specifications relative to the provision of home and community-based services (HCBS) waiver as authorized by the Secretary of the United States Department of Health and Human services pursuant to section 1915(c) of the Social Security Act (see glossary).

(b) All providers of home and community-based waiver services shall be authorized pursuant to a Medicaid provider agreement issued and approved by the New York State Department of Social services specific to the type of services being offered.

(c) In addition, all authorized HCBS waiver providers shall comply with the requirements of Parts 624 and 633 of this Title.

(d) Also authorized pursuant to the HCBS waiver referenced in subdivision (a) of this section, are community residential habilitation services provided in OPWDD-certified community residences pursuant to Part 671 of this Title.

(e) The allowable activities for waiver community residential habilitation services provided in accordance with Part 671 of this Title are not subject to the provisions of section 635-10.4(b)(1) of this Subpart.

History

Amended, New York State Register, Volume XXXVI, Issue 25, effective 7/1/2014

Enrollment in Medicare Prescription Drug Plans and Fully Integrated Duals Advantage Plans for Individuals with Intellectual and Developmental Disabilities (FIDA-IDD) Enrollment in Medicare Prescription Drug Plans and Fully Integrated Duals Advantage Plans for Individuals with Intellectual and Developmental Disabilities (FIDA-IDD)

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.1 Applicability and definitions

(a) This Subpart sets forth rules concerning:

(1) who can enroll beneficiaries or individuals in:

(i) a Medicare Part D prescription drug plan or in a Medicare advantage plan with prescription drug coverage; or

(ii) a Fully Integrated Duals Advantage Plan for Individuals with Intellectual and Developmental Disabilities (FIDA-IDD) which is authorized to enroll individuals with intellectual and/or developmental disabilities pursuant to section 364-j (27)(c) of the Social Services Law; and

(2) who can pursue grievances, complaints, exceptions and appeals in such plans;

(3) these rules only apply to beneficiaries who receive services which are operated, certified, authorized or funded by OPWDD.

(b) Definitions.

As used in this Subpart:

(1) Act in the FIDA-IDD plan review process means doing any of the following within a FIDA-IDD plan:

(i) filing a grievance;

(ii) submitting a complaint to the quality improvement organization or to Federal or State government regulatory agencies;

(iii) requesting and obtaining a coverage determination (including, but not limited to, a request for prior authorization, a formulary exception and a request for expedited procedures);

(iv) filing and requesting appeals and dealing with, or participating in, any part of the appeals process;

(2) Act in the Part D review process means doing any of the following within the Part D Program:

(i) filing a grievance;

(ii) submitting a complaint to the quality improvement organization;

(iii) requesting and obtaining a coverage determination (including, but not limited to, a request for prior authorization, an exception to a tiered cost sharing structure, a formulary exception and a request for expedited procedures); and

(iv) filing and requesting appeals and dealing with any part of the appeals process;

(3) DDRO means an OPWDD Developmental Disabilities Regional Office.

(4) DDSOO means an OPWDD Developmental Disabilities State Operations Office.

(5) Enroll and enrollment means enrollment in, and disenrollment from:

(i) a PDP; and/or

(ii) a FIDA-IDD plan.

(6) FIDA-IDD or FIDA-IDD plan means a Fully Integrated Duals Advantage Plan for Individuals with Intellectual and Developmental Disabilities (FIDA-IDD) authorized to enroll individuals with intellectual and/or developmental disabilities under section 364-j (27)(c) of the Social Services Law.

(7) Party means someone or an entity or organization.

(8) PDP means a prescription drug plan offered under the Medicare Part D Program or a Medicare advantage plan that provides prescription drug coverage offered under the Medicare Part D Program.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.2 PDP enrollment and reviews for persons residing in a residential facility operated or certified by OPWDD or a family care home

(a) If a person has the ability to choose a PDP, the person may enroll himself or herself in a PDP or appoint another party to enroll him or her. If a person has the ability to act in the Part D review process, the person may act in the Part D review process for himself or herself or appoint another party to act in the Part D review process for him or her.

(b) If a person lacks the ability to choose a PDP, but has a guardian lawfully empowered to enroll him or her in a PDP, the guardian may enroll the person in a PDP or appoint another party to enroll the person. If a person lacks the ability to act in the Part D review process, but has a guardian lawfully empowered to act in the Part D review process for that person, the guardian may act in the Part D review process or may appoint another party to act in the Part D review process for the person.

(c) If a person is a minor and does not have a guardian lawfully empowered to enroll him or her in a PDP or to act in the Part D review process, a parent may enroll him or her or act in the Part D review process for the person, or may appoint another party to enroll or act in the Part D review process for him or her.

(d) In all other situations, the Chief Executive Officer (CEO) (see section 635-99.1 of this Part) of the agency operating the person's residential facility or sponsoring the family care home, or a designee of the CEO, may enroll the person or act in the Part D review process. The CEO or designee may also enroll the person or act in the Part D review process when any party specified in subdivisions (a)-(c) of this section who would otherwise enroll or act in the Part D review process is unwilling or unavailable. For the purposes of this subdivision only, if the person's residential facility is operated by OPWDD, the CEO of the agency is the director of the DDSOO that operates the residential facility.

(1) If a CEO or designee enrolls a person, he or she shall give written notice of such enrollment to the person's correspondent or advocate, and the person's Medicaid service coordinator, or other person identified as that person's care coordinator.

(2) Process to request a different PDP.

(i) A correspondent or advocate may request that the person be enrolled in a different PDP. Such request must be in writing.

(ii) The agency or sponsoring agency shall consider the request and, if it agrees with the request, the CEO or designee shall enroll the person in the PDP requested and notify the advocate or correspondent of the enrollment.

(iii) If the agency or sponsoring agency does not agree with the request, the agency or sponsoring agency shall notify the correspondent or advocate in writing of the disagreement. The notice shall also inform the advocate or correspondent that he or she may appeal in writing to the DDRO director for the region within which the person's residential facility is located if the residential facility is not operated by OPWDD. If the person's residential facility is operated by OPWDD, then the notice shall inform the advocate or correspondent that he or she may appeal in writing to the director of the DDSOO that operates that residential facility.

(iv) If the advocate or correspondent appeals in writing to the DDRO or DDSOO director, the director shall review the request and relevant information and shall decide whether to enroll the person in a different PDP. Such decision shall be in writing and shall be sent to the correspondent or advocate and agency or sponsoring agency.

(v) While a request is being considered, the person shall remain enrolled in the PDP selected by the CEO or designee, or in a PDP in which the person is subsequently enrolled by the CEO or designee.

(3) Notwithstanding any other provision of this Title, if the person enrolls in a PDP (or a parent, guardian or appointee enrolls him or her) and the CEO or designee notifies the person, guardian, parent or appointee of the agency or sponsoring agency of the objection to the selection of the PDP, the agency or sponsoring agency is not fiscally responsible for any excess costs that may be incurred, as a result of the selection of the PDP, compared to the costs of the PDP that would have been selected by the CEO or designee. The agency or sponsoring agency's written notification of the objection must inform the person, guardian, parent or appointee that the excess costs are not the responsibility of the agency or sponsoring agency and that the person, guardian, parent or appointee (whoever completed the enrollment) is responsible for the additional costs. Receipt of the written notification must be documented.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.3 PDP enrollment and reviews for persons not residing in a residential facility or a family care home

(b) If a person lacks the ability to choose a PDP, but has a guardian lawfully empowered to enroll him or her in a PDP, the guardian may enroll the person in a PDP or appoint another party to enroll the person. If a person lacks the ability to act in the Part D review process, but has a guardian lawfully empowered to act in the Part D review process for the person, the guardian may act in the Part D review process or appoint another party to act in the Part D review process for the person.

(c) If the person is a minor and does not have a guardian lawfully empowered to enroll him or her in a PDP or to act in the Part D review process, a parent may enroll the person or act in the Part D review process, or may appoint another party to enroll the person or act in the Part D review process.

(d) In all other situations, or if any party specified in subdivisions (a)-(c) of this section who would otherwise enroll the person or act in the Part D review process is unwilling or unavailable, any of the following parties may enroll the person, act in the Part D review process or appoint another party to act in the Part D review process:

(1) an actively involved: spouse, parent, adult child, adult sibling, adult family member or friend, an advocate or correspondent; or

(2) if none of the above are willing and available, the CEO (or designee) of the agency providing service coordination for the person.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.4 FIDA-IDD enrollment and reviews for persons residing in a residential facility operated or certified by OPWDD or a family care home

(a) If a person has the ability to choose a FIDA-IDD plan, the person may enroll himself or herself in a FIDA-IDD plan or appoint another party to enroll him or her. If a person has the ability to act in the FIDA-IDD review process, the person may act in the FIDA-IDD review process for himself or herself or appoint another party to act in the FIDA-IDD review process for him or her.

(b) If a person lacks the ability to choose a FIDA-IDD plan, but has a guardian lawfully empowered to enroll him or her in a FIDA-IDD plan, the guardian may enroll the person in a FIDA-IDD plan or appoint another party to enroll the person. If a person lacks the ability to act in the FIDA-IDD review process, but has a guardian lawfully empowered to act in the FIDA-IDD review process for that person, the guardian may act in the FIDA-IDD review process or may appoint another party to act in the FIDA-IDD review process for the person.

(c) If a party specified in subdivisions (a) or (b) of this section who would otherwise enroll the person or act in the FIDA-IDD review process is unwilling or unavailable, then any of the following parties, in the order stated, may enroll the person, act in the FIDA-IDD review process or appoint another party to act in the FIDA-IDD review process:

(1) an actively involved spouse;

(2) an actively involved parent;

(3) an actively involved adult child;

(4) an actively involved adult sibling;

(5) an actively involved adult family member;

(6) the Consumer Advisory Board for the Willowbrook Class (only for class members it fully represents).

(d) In all other situations, the chief executive officer (CEO) (see section 635-99.1 of this Part) of the agency operating the person's residential facility or sponsoring the family care home, or a designee of the CEO, may enroll the person or act in the FIDA-IDD review process. The CEO or designee may also enroll the person or act in the FIDA-IDD review process when any party specified in subdivisions (a)-(c) of this section who would otherwise enroll or act in the FIDA-IDD review process is unwilling or unavailable. For the purposes of this subsection only, if the person's residential facility is operated by OPWDD, the CEO of the agency is the director of the DDSOO that operates the residential facility.

(e) If a party specified in subdivisions (a) through (d) of this section, in the order so specified, makes a decision to enroll in a FIDA-IDD plan; not to enroll in a FIDA-IDD plan; or to disenroll from a FIDA-IDD plan; that decision shall be considered the final decision of the affected individual and any party in a subordinate position, as specified in subdivisions (a) through (d) of this section, may not change that enrollment decision. The party that enrolls the individual shall also be the party authorized to act in the FIDA-IDD review process.

(f) If the CEO enrolls the person in the FIDA-IDD plan or acts in the FIDA-IDD review process, he or she shall give written notice of such enrollment and/or action to:

(1) the person's correspondent or advocate, if one is available;

(2) the person's Medicaid service coordinator, or other person identified as that person's care coordinator;

(3) the DDRO director for the region encompassing the person's residence.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.5 FIDA-IDD plan enrollment and reviews for persons not residing in a residential facility or a family care home

(b) If a person lacks the ability to choose a FIDA-IDD plan, but has a guardian lawfully empowered to enroll him or her in a FIDA-IDD plan, the guardian may enroll the person in a FIDA-IDD plan or appoint another party to enroll the person. If a person lacks the ability to act in the FIDA-IDD review process, but has a guardian lawfully empowered to act in the FIDA-IDD review process for the person, the guardian may act in the FIDA-IDD review process or appoint another party to act in the FIDA-IDD review process for the person.

(c) In all other situations, or if any party specified in subdivisions (a)-(c) of this section who would otherwise enroll the person or act in the FIDA-IDD review process is unwilling or unavailable, any of the following parties, in the order stated, may enroll the person, act in the FIDA-IDD review process or appoint another party to act in the FIDA-IDD review process:

(1) an actively involved spouse;

(2) an actively involved parent;

(3) an actively involved adult child;

(4) an actively involved adult sibling;

(5) an actively involved adult family member;

(6) the Consumer Advisory Board for the Willowbrook Class (only for class members it fully represents).

(d) In all other situations, the person may be enrolled by the CEO (or designee) of the agency providing service coordination for the person. The CEO or designee may also enroll the person or act in the FIDA-IDD review process when any party specified in subdivisions (a)-(c) of this section who would otherwise enroll or act in the FIDA-IDD review process is unwilling or unavailable. If that CEO enrolls the person in the FIDA-IDD plan or acts in the FIDA-IDD review process, he or she shall give written notice of such enrollment and/or action to:

(1) the person's correspondent or advocate, if one is available; and

(2) the DDRO director for the region encompassing the person's residence.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.6 Other responsibilities and rights of agencies and sponsoring agencies regarding PDP enrollment and reviews

(a) No CEO, officer, designee or employee of an agency or sponsoring agency shall solicit, accept or receive from a PDP, pharmacy or contractor of a PDP or pharmacy, for personal use or benefit (other than for the personal use or benefit of the person being enrolled), any payment, discount or other remuneration in consideration of, or as a result of, enrolling the person in a PDP.

(b) No CEO, officer, designee or employee of an agency or sponsoring agency shall charge, accept or receive payment from the person, family or anyone else for enrolling the person in a PDP, for providing advice and assistance in choosing a PDP or for acting for the person in the Part D review process.

(c) When a CEO or designee is authorized to act by this section or appointed to act in the Part D review process for a person, the CEO or designee may appoint a party outside of the agency to act in the Part D review process for the person.

(d) When a CEO or designee enrolls a person he or she shall choose a PDP based on the best interests of the person.

(e) Nothing in this Subpart shall be deemed to diminish or remove the authority of a physician to request a coverage determination or an expedited redetermination on behalf of a beneficiary.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.7 Other responsibilities and rights of CEOs and DDSOO and DDRO directors or designees regarding FIDA-IDD plan enrollment and reviews

(a) No CEO or DDRO or DDSOO director or designee shall solicit, accept or receive from a FIDA-IDD plan operator, or an agent of the plan, for personal use or benefit (other than for the personal use or benefit of the person being enrolled), any payment, discount or other remuneration in consideration of, or as a result of, enrolling the person in a FIDA-IDD plan.

(b) No CEO or DDRO or DDSOO director or designee shall charge, accept or receive payment from the person, family or anyone else for enrolling the person in a FIDA-IDD plan, for providing advice and assistance in choosing a FIDA-IDD plan or for acting for the person in the FIDA-IDD review process.

(c) When a CEO or DDRO or DDSOO director or designee is authorized to act by this section or appointed to act in the FIDA-IDD review process for a person, the director or designee may appoint a party outside of the agency to act in the FIDA-IDD review process for the person.

(d) When a CEO or DDRO or DDSOO director or designee enrolls a person in a FIDA-IDD plan or acts in the FIDA-IDD review process for a person he or she shall act based on the best interests of the person.

(e) Nothing in this Subpart shall be deemed to diminish or remove the authority of a physician to request a coverage determination or an expedited redetermination on behalf of a beneficiary.

History

Amended New York State Register June 26, 2019/Volume XLI, Issue 26, eff. 6/26/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.8 CCO enrollment and reviews for persons residing in a residential facility operated or certified by OPWDD or a family care home

(a) If a person has the ability to choose a CCO on his or her own, or with the assistance of supported decision making, the person may:

(1) enroll himself or herself in a CCO plan;

(2) act in the CCO review process;

(3) disenroll himself or herself from a CCO;

(4) appoint another party to take actions on his or her behalf; or

(5) seek assistance with the above decisions and actions.

(b) If a person lacks the ability to enroll in a CCO, disenroll from a CCO, or act in the CCO review process, but has a guardian lawfully empowered to enroll him or her in a CCO, the guardian may take any of the actions enumerated in subdivision (a) of this section.

(c) If a person lacks the ability to choose a CCO and does not have a guardian lawfully empowered to enroll him or her in a CCO, then any of the following parties, in the order stated, may take any of the actions enumerated in subdivision (a) of this section:

(1) an actively involved (see section 633.99[ax] of this Title) spouse;

(2) an actively involved parent;

(3) an actively involved adult child;

(4) an actively involved adult sibling;

(5) an actively involved adult family member;

(6) the Consumer Advisory Board for the Willowbrook Class members, but only for members of the Willowbrook Class.

(d) If the first surrogate on the list in subdivision (c) of this section is not reasonably available and willing to make enrollment decisions and enroll the individual in a CCO or act in the CCO review process, and is not expected to become reasonably available and willing to make an enrollment decision and enroll the individual in a CCO or act in the CCO review process, the surrogate who has the highest priority on the list and who is willing and available shall have the authority to make enrollment decisions and enroll the individual in a CCO or act in the CCO review process.

(e) If more than one party exists within a category in subdivision (c) of this section utilizing the standard of active involvement, consent shall be sought first from the party with a higher level of involvement or, when the parties within a category are equally actively involved, consent shall be sought from any of such parties.

(f) If a person lacks the ability to choose a CCO, does not have a guardian lawfully empowered to enroll him or her in a CCO, and there are no parties identified in subdivision (c) of this section, then the chief executive officer (CEO) (see section 635-99.1 of this Part) of the agency operating the person's residential facility or sponsoring the family care home, or a designee of the CEO, may take any of the actions enumerated in subdivision (a) of this section. For the purposes of this subsection only, if the person's residential facility is operated by OPWDD, the CEO of the agency is the director of the DDSOO that operates the residential facility.

(g) If a party specified in subdivisions (a) through (e) of this section, in the order so specified, makes a decision to enroll in a CCO; not to enroll in a CCO; or to disenroll from a CCO; that decision shall be considered the final decision of the affected individual and any party in a subordinate position, as specified in subdivisions (a) through (e) of this section, may not change that enrollment decision. The party that enrolls the individual shall also be the party authorized to act in the CCO review process.

(h) If the CEO enrolls the person in the CCO or acts in the CCO review process, he or she shall give written notice of such enrollment and/or action to:

(1) the person's correspondent or advocate, if one is available;

(2) the person's Medicaid service coordinator, or other person identified as that person's care coordinator;

(3) the DDRO director for the region encompassing the person's residence.

(i) For each individual eligible to enroll in a CCO, the individual's care management provider for OPWDD-certified services shall identify a decision-maker who has the authority to make enrollment decisions for the individual pursuant to this section. If there is no care management provider assigned to the individual at the time of the eligibility, the DDRO director for the region encompassing the person's current residence, or his or her designee, shall identify a decision-maker pursuant to this section.

(j) The care management provider or DDRO director shall notify the following parties of the decision-maker identified to make enrollment decisions:

(1) the identified decision-maker; and

(2) OPWDD, if necessary.

(k) The care management provider or DDRO director shall maintain documentation of the current decision-maker identified pursuant to this section, including documentation of attempts to reach unavailable individuals, and shall confirm the identification of the current decision maker as necessary, but at least annually.

History

Adopted New York State Register August 22, 2018/Volume XL, Issue 34, eff. 8/22/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.9 CCO enrollment and reviews for persons not residing in a residential facility or a family care home

(a) If a person has the ability to choose a CCO on his or her own, or with the assistance of supported decision making, the person may:

(1) enroll himself or herself in a CCO;

(2) act in the CCO review process;

(3) disenroll himself or herself from a CCO;

(4) appoint another party to take actions on his or her behalf; or

(5) seek assistance with the above decisions and actions.

(b) If a person lacks the ability to choose a CCO, but has a guardian lawfully empowered to enroll him or her in a CCO, the guardian may take any of the actions enumerated in subdivision (a) of this section.

(1) an actively involved (see section 633.99[ax] of this Title) spouse;

(2) an actively involved parent;

(3) an actively involved adult child;

(4) an actively involved adult sibling;

(5) an actively involved adult family member;

(6) the Consumer Advisory Board for the Willowbrook Class members, but only for the members of the Willowbrook Class.

(e) If more than one party exists within a category in subdivision (c) of this section utilizing the standard of active involvement, consent shall be sought first from the party with a higher level of active involvement or, when the parties within a category are equally actively involved, consent shall be sought from any of such parties.

(f) If a person lacks the ability to choose a CCO: does not have a guardian lawfully empowered to enroll him or her in a CCO; and there are no parties identified in subdivision (c) of this section, the DDRO director for the region encompassing the person's residence, or his or her designee may take any of the actions enumerated in subdivision (a) of this section. If the DDRO director or designee enrolls the person in the CCO, acts in the CCO review process, or disenrolls the individual from a CCO, he or she shall give written notice of such enrollment, disenrollment and/or action to the person's correspondent or advocate, if one is available.

(g) If the DDRO director or designee enrolls the person in the CCO, acts in the CCO review process, or disenrolls the individual from a CCO, he or she shall give written notice of such enrollment, disenrollment and/or action to the person's correspondent or advocate, if one is available.

(h) If a party specified in subdivisions (a) through (e) of this section, in the order so specified, makes a decision to enroll in a CCO; not to enroll in a CCO; or to disenroll from a CCO; that decision shall be considered the final decision of the affected individual and any party in a subordinate position, as specified in subdivisions (a) through (e) of this section, may not change that enrollment decision. The party that enrolls the individual shall also be the party authorized to act in the CCO review process.

(j) The care management provider or DDRO director shall notify the following parties of the decision-maker identified to make enrollment decisions:

(1) the identified decision-maker; and

(2) OPWDD, if necessary.

(k) The care management provider or DDRO director shall maintain documentation of the current decision-maker identified pursuant to this subsection, including documentation of attempts to reach unavailable individuals, and shall confirm the identification of the current decision maker as necessary, but at least annually.

History

Adopted New York State Register August 22, 2018/Volume XL, Issue 34, eff. 8/22/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-11.10 Other responsibilities and rights of CEOs and DDSOO and DDRO directors or designees regarding CCO enrollment and reviews

(a) No CEO or DDRO or DDSOO director or designee shall solicit, accept or receive from a CCO or Managed Care Plan operator, or an agent of the CCO or Managed Care Plan, for personal use or benefit (other than for the personal use or benefit of the person being enrolled), any payment, discount or other remuneration in consideration of, or as a result of, enrolling the person in a CCO or Managed Care Plan.

(b) No CEO or DDRO or DDSOO director or designee shall charge, accept or receive payment from the person, family or anyone else for enrolling the person in a CCO or Managed Care Plan, for providing advice and assistance in choosing a CCO or Managed Care Plan or for acting for the person in the CCO or Managed Care Plan review process.

(c) When a CEO or DDRO or DDSOO director or designee is authorized to act by this section or appointed to act in the CCO or Managed Care Plan review process for a person, the director or designee may appoint a party outside of the agency to act in the CCO or Managed Care Plan review process for the person.

(d) When a CEO or DDRO or DDSOO director or designee enrolls a person in a CCO or Managed Care Plan, disenrolls a person from a CCO or Managed Care Plan, or acts in the CCO or Managed Care Plan review process for a person he or she shall act based on the best interests of the person, and shall fully document the reasons for such enrollment decision or action.

History

Adopted New York State Register August 22, 2018/Volume XL, Issue 34, eff. 8/22/2018

Subpart 635-12 Liability for Services

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.1 Definitions

As used in this Subpart:

(a) Full Medicaid coverage means the type of coverage under the Medicaid program that pays for the services requested or received.

(b) HCBS waiver means the home and community based services waiver in effect from October 1, 2009 through September 30, 2014 for individuals with developmental disabilities granted by the United States Department of Health and Human services to New York State pursuant to section 1915(c) of the Social Security Act, and any subsequent renewals of such waiver.

(c) Liable party means any party other than a governmental entity who is legally liable to pay for services pursuant to section 43.03 of the Mental Hygiene Law or any other applicable provision of law.

(d) Maintain full Medicaid coverage means taking all steps necessary to continue to receive full Medicaid coverage, including, but not limited to, spending down income or resources to meet the Medicaid eligibility level under section 366 (2)(a) of the Social Services Law.

(e) Notice date means:

(1) March 15, 2009 for ICF/DD services; the following HCBS waiver residential habilitation services: community (in a community residence), IRA, and family care; and HCBS waiver day habilitation services; or

(2) May 15, 2010 for Medicaid service coordination; day treatment services; the following HCBS waiver services: at home residential habilitation services, prevocational services, supported employment services, and respite services; and blended services and comprehensive services.

(f) Payment start date means:

(1) April 15, 2009 for ICF/DD services; the following HCBS waiver residential habilitation services: community (in a community residence), IRA, and family care; and HCBS waiver day habilitation services; or

(2) June 15, 2010 for Medicaid service coordination; day treatment services; the following HCBS waiver services: at home residential habilitation services, prevocational services, supported employment services, and respite services; and blended services and comprehensive services.

(g) Preexisting compliance date means:

(1) February 15, 2009 for ICF/DD services; the following HCBS waiver residential habilitation services: community (in a community residence), IRA, and family care; and HCBS waiver day habilitation services; or

(2) March 15, 2010 for Medicaid service coordination; day treatment services; the following HCBS waiver services: at home residential habilitation services, prevocational services, support employment services, and respite services; and blended services and comprehensive services.

(h) Preexisting services.

(1) For ICD/DD services; the following HCBS waiver residential habilitation services: community (in a community residence), IRA, and family care; and HCBS waiver day habilitation services, preexisting services means:

(i) services which an individual was receiving from a provider on a regular basis as of February 15, 2009 and receives from the same provider after February 15, 2009; and

(ii) residential habilitation services in an individualized residential alternative (IRA) which converted from a community residence after February 15, 2009, if the individual resided in the community residence on February 15, 2009; and

(iii) services which an individual was receiving on a regular basis as of February 15, 2009, and receives from a different provider after February 15, 2009 where the individual's receipt of the services from the different provider is the result of one provider assuming operation or control of the other provider's operations and programs, or is the result of a merger or consolidation of providers;

(iv) residential habilitation and/or group day habilitation which is received by an individual who formerly received community habilitation phase II in the following circumstances:

(a) the individual received residential habilitation and/or group day habilitation prior to the receipt of community habilitation phase II and the services were preexisting services; and

(b) after the individual stopped receiving community habilitation phase II, he or she resumed receipt of the residential habilitation and/or day habilitation services which were formerly provided; and

(c) the residential habilitation and/or day habilitation services would have been preexisting services except for the intervening receipt of community habilitation phase II.

(2) For Medicaid service coordination; day treatment services; the following HCBS waiver services: at home residential habilitation services, hourly community habilitation services, prevocational services, supported employment services, respite services; and blended services and comprehensive services, preexisting services means:

(i) services which an individual was receiving from a provider on a regular basis as of March 15, 2010 and receives from the same provider after March 15, 2010; and

(ii) services which an individual was receiving on a regular basis as of March 15, 2010, and receives from a different provider after March 15, 2010, where the individual's receipt of the services from the different provider is the result of one provider assuming operation or control of the other provider's operations and programs, or is the result of a merger or consolidation of providers; and

(iii) HCBS waiver respite services which converted after March 15, 2010 from respite services funded as a type of family support services if:

(a) the individual received the respite services funded as a type of family support services on a regular basis as of March 15, 2010 and continued to receive the services on a regular basis from the same provider until the conversion date; and

(b) the HCBS waiver respite services are delivered by the same provider; and

(iv) hourly community habilitation services which converted on November 1, 2010 from at home residential habilitation services if:

(a) the individual received the at home residential habilitation services on a regular basis as of March 15, 2010 and continued to receive the services on a regular basis from the same provider through November 1, 2010; and

(b) the hourly community habilitation services are delivered by the same provider.

(i) Provider means an individual, corporation, partnership or other organization to which OPWDD has issued an operating certificate, authorization or funding to provide services. Provider shall not mean OPWDD or any developmental disabilities services office.

(j) Services means ICF/DD services (Intermediate Care Facilities for Persons with Developmental Disabilities, see Part 681 of this Title), Medicaid service coordination, day treatment services, and the following HCBS waiver services: residential habilitation services (community [in a community residence], IRA, family care, and at home), hourly community habilitation services, day habilitation services, prevocational services, supported employment services, respite services, and community habilitation phase II services. Blended services, which are a combination of day habilitation, prevocational services and/or supported employment services, and comprehensive services, which are a combination of IRA residential habilitation services and day habilitation, are also considered services. A limited exception to the applicability of certain sections of this Subpart has been made in the case of some individuals who are applying for or receiving supported employment services or respite services (see section 635-12.12 of this Subpart).

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.2 General provider obligations

(a) This Subpart applies to all services, whether or not they are preexisting services. However, a limited exception to the applicability of certain sections of this Subpart has been made in the case of some individuals who are applying for or receiving supported employment services or respite services (see section 635-12.12 of this Subpart).

(b) Each provider shall establish fee schedules for services it provides in accordance with section 635-12.9 of this Subpart.

(c) Each provider shall have written policies/procedures in place to protect the privacy of personal financial information concerning individuals requesting or receiving services and other liable parties.

(1) Providers shall designate staff who are authorized to obtain and access personal financial information.

(2) Providers may only disclose personal financial information obtained about the individual and liable parties to entities as necessary for the individual to obtain and maintain benefits and to OPWDD.

(d) Each provider shall require that the individual and liable parties comply with the requirements of this Subpart.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.3 Provider obligations for services other than preexisting services

(a) This section applies only to services which are not preexisting services.

(b) Disclosure of personal and financial information.

(1) Prior to the individual receiving services, the provider shall take such steps to obtain personal and financial information as may be reasonably required to identify liable parties and to ascertain the individual's and any other liable parties' ability to pay for services or the individual's ability to obtain and maintain full Medicaid coverage.

(2) However, when individuals and/or other liable parties agree to pay the full fee for the services, the provider is not required to obtain the information specified in paragraph (1) of this subdivision. In these situations, the provider may obtain such information at its discretion.

(3) The provider shall require that, during the period that services are received, the individual and all other liable parties notify the provider about any changes in liable parties, any changes in the individual's Medicaid coverage and any changes that may affect the individual's eligibility for full Medicaid coverage and/or the individual's and other liable parties' ability to pay for services.

Prior to the receipt of services, the provider shall give the individual and any known other liable parties copies of the fee schedule for those services, together with a notice including a description of the obligations of the provider, the individual and liable parties under the law and this regulation in the form and format specified by the commissioner.

(d) Reduction or waiver of fees.

(1) The provider may reduce or waive fees with prior OPWDD approval subject to the following conditions:

(i) OPWDD approval for a reduction or waiver of fees for an individual will be based on consideration of the individual's or other liable parties' available income and resources, the individual's living situation, and the individual's ability to meet Medicaid eligibility requirements.

(ii) OPWDD approval for a reduction or waiver of fees is only available when the individual has taken all necessary steps to obtain and maintain full Medicaid coverage. However, OPWDD may approve a reduction or waiver of fees for Medicaid service coordination (MSC) for up to three months if an individual does not have full Medicaid coverage and MSC is necessary to assist the individual in obtaining full Medicaid coverage.

(iii) The provider shall give the individual and all liable parties 30 days' written notice of any changes in the reduction or waiver of fees granted with prior OPWDD approval and shall require the individual and/or liable parties to agree to the full fee or new reduced fee or acknowledge the waiver of the fee.

(2) The provider may also waive or reduce fees at their discretion without the prior approval of OPWDD. However, OPWDD payments are not available when such waivers or reduced fees are granted.

(e) Application for HCBS waiver services.

If the services are HCBS waiver services, the provider shall require that the individual take all necessary steps to enroll in the HCBS waiver and take all necessary steps to maintain HCBS waiver enrollment.

(f) The provider shall inquire whether an individual applying for services is already enrolled in supported employment services or applying for or enrolled in respite services. If the individual is enrolled in supported employment services or applying for or enrolled in respite services, the provider shall comply with its obligations as specified in section 635-12.12(c) and/or (d) of this Subpart, as applicable.

(g) Community habilitation phase II services are "other than preexisting services."

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.4 Provider obligations for preexisting services

(a) This section applies only to preexisting services.

(b) Disclosure of personal and financial information.

(1) Prior to the notice date (see section 635-12.1 of this Subpart) the provider shall take such steps to obtain personal and financial information concerning individuals without full Medicaid coverage as may be reasonably required to identify liable parties and to ascertain the individual's and any other liable parties' ability to pay for services or the individual's ability to obtain and maintain full Medicaid coverage.

(2) However, when individuals or other liable parties have agreed to pay the full fee for the services, the provider is not required to obtain the information specified in paragraph (1) of this subdivision. In these situations, the provider may obtain such information at its discretion.

(3) The provider may require that, during the period that an individual receives preexisting services, the individual or liable party supply personal and financial information as may be reasonably required to identify liable parties and to ascertain the individual's and any other liable parties' ability to pay for services or the individual's ability to obtain and maintain full Medicaid coverage.

(4) The provider shall require that, during the period an individual receives preexisting services, the individual and other liable parties notify the provider about any changes in liable parties, any changes in the individual's Medicaid coverage and any changes that may affect the individual's eligibility for full Medicaid coverage and/or the individual's and other liable parties' ability to pay for services.

On or before the notice date, the provider shall give all individuals receiving preexisting services and any known other liable parties copies of the fee schedule for preexisting services which the individual is receiving, together with a notice including a description of the obligations of the provider, the individual and liable parties under the law and this regulation in the form and format specified by the commissioner.

(d) Reduction or waiver of fees.

(1) The provider may reduce or waive fees with prior OPWDD approval subject to the following conditions:

(iii) OPWDD approval for a reduction or waiver of fees is only available when OPWDD was paying the full fee or part of the fee for the preexisting services on the preexisting compliance date (see section 635-12.1 of this Subpart), or when the individual had full Medicaid coverage on the preexisting compliance date.

(iv) The provider shall give the individual and all liable parties 30 days' written notice of any changes in the reduction or waiver of fees granted with prior OPWDD approval and shall require the individual and/or liable parties to agree to the full fee or new reduced fee or acknowledge the waiver of the fee.

(2) The provider may also waive or reduce fees at their discretion without the prior approval of OPWDD. However, OPWDD payments are not available when such waivers or reduced fees are granted.

(e) Application for HCBS waiver services.

If the preexisting services are HCBS waiver services and the individual is not already enrolled in the HCBS waiver, the provider shall require that the individual take all necessary steps to enroll in the HCBS waiver by the payment start date (see section 635-12.1 of this Subpart), and take all necessary steps to maintain HCBS waiver enrollment.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.5 Billing, collection and assignment of unpaid amounts

(a) This section applies to all services, whether or not they are preexisting services.

(b) If the individual does not have full Medicaid coverage, the provider shall bill the individual and/or other liable parties for the services in accordance with the applicable fee schedule in section 635-12.9 of this Subpart or with the reduced fee established by the provider with the approval of OPWDD. However, if the fee has been waived by the provider with the approval of OPWDD, the provider is not required to bill the individual or other liable parties for the Service.

(c) The provider must present the bill no later than 30 days after the month in which the provider rendered the services.

(d) The provider shall make reasonable efforts to collect unpaid bills.

(e) Collection efforts cannot interfere with the individual's services.

(f) After making reasonable collection efforts and upon consent of OPWDD, a provider shall assign to OPWDD its claim for payment for any unpaid amount.

(g) Any payments received by the State for unpaid claims assigned pursuant to this section shall be paid to the provider, minus any State funds paid to the provider pursuant to section 635-12.8 of this Subpart.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.6 Obligations of individuals receiving or requesting services and liable parties - services other than Preexisting services

(a) This section applies only to services which are not preexisting services.

(b) Responsibility for provision of information.

(1) Prior to the receipt of services, and upon request of the provider, individuals requesting or receiving services, and other liable parties, shall provide personal and financial information as may be reasonably required to identify liable parties and to ascertain the individual's and any other liable parties' ability to pay for services or the individual's ability to obtain and maintain full Medicaid coverage.

(2) Subsequent to the provision of information required in paragraph (1) of this subdivision and throughout the period that services are received, the individual and other liable parties shall notify the provider about any changes in liable parties, any changes in the individual's Medicaid coverage and any changes that may affect the individual's eligibility for full Medicaid coverage and/or the individual's and other liable parties' ability to pay for services. If the individual or any other party receives a notice from the Medicaid district that the individual is losing full Medicaid coverage, the individual or party must inform the provider within five days of receipt of the notice.

(3) Each individual requesting or receiving services must:

(i) present evidence of and maintain full Medicaid coverage; or

(ii) take all necessary steps to obtain and maintain full Medicaid coverage; or

(iii) disclose to the provider such information as may be reasonably required to obtain and maintain full Medicaid coverage, and allow the provider to assist the individual to take all necessary steps to obtain and maintain full Medicaid coverage or apply on the individual's behalf; or

(iv) agree to pay for the services in accordance with the applicable fee schedule in section 635-12.9 of this Subpart. Liable parties may agree in lieu of the individual; or

(v) agree to pay for the services in accordance with the reduced fee established by the provider and acknowledge that any reduction of the fee shall not constitute nor be construed as a release of the individual or any liable party from liability for payment of the full fee. Other liable parties may agree and acknowledge same in lieu of the individual; or

(vi) acknowledge that the fee has been waived by the provider and that any waiver of the fee shall not constitute nor be construed as a release of the individual or any liable party from liability for payment of the full fee. Other liable parties may acknowledge same in lieu of the individual.

(4) In addition, if HCBS waiver services are requested, the individual must take all necessary steps to enroll in the HCBS waiver and take all necessary steps to maintain enrollment in the HCBS waiver.

(5) Unless the individual has full Medicaid coverage or the fee is waived by the provider, the individual and/or liable parties must either:

(i) pay for the services in accordance with the applicable fee schedule in section 635-12.9 of this Subpart; or

(ii) pay for the services with the reduced fees established by the provider.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.7 Obligations of individuals receiving or requesting services and liable parties-preexisting services

(a) This section applies only to preexisting services.

(b) Responsibility to provide information.

(1) Individuals receiving preexisting services and other liable parties shall, by the payment start date, provide information upon the provider's request regarding personal and financial information as may be reasonably required to identify liable parties and to ascertain the individual's and any other liable parties' ability to pay for services or the individual's ability to obtain and maintain full Medicaid coverage.

(2) Subsequent to the provision of the information required in paragraph (1) of this subdivision and throughout the period that preexisting services are received, the individual and other liable parties shall notify the provider of any changes in liable parties, any changes in the individual's Medicaid coverage and any changes that may affect the individual's eligibility for full Medicaid coverage and/or the individual's and other liable parties' ability to pay for services. If the individual or any other party receives a notice from the Medicaid district that the individual is losing full Medicaid coverage, the individual or party must inform the provider within five days of receipt of the notice.

(3) Prior to the payment start date, each individual receiving preexisting services must:

(i) present evidence of full Medicaid coverage; or

(ii) take all necessary steps to obtain full Medicaid coverage; or

(iv) agree to pay for the services in accordance with the applicable fee schedule in section 635-12.9 of this Subpart. Liable parties may agree in lieu of the individual; or

(4) In addition, if an individual not already enrolled in the HCBS waiver is receiving preexisting services that are offered through the HCBS waiver, the individual must take all necessary steps to enroll in the HCBS waiver by the payment start date and must take all necessary steps to maintain enrollment in the HCBS waiver.

(5) Unless the fee is waived by the provider, if the individual does not obtain full Medicaid coverage by the payment start date, or if the individual loses full Medicaid coverage on or after the payment start date, the individual and/or liable parties must either:

(i) pay for the preexisting services delivered on or after the payment start date in accordance with the applicable fee schedule in section 635-12.9 of this Subpart; or

(ii) pay for the preexisting services delivered on or after the payment start date with the reduced fees established by the provider.

(6) For Medicaid service coordination; day treatment services; the following HCBS waiver services: at home residential habilitation services, prevocational services, supported employment services, respite services; and blended and comprehensive services: If a notice from the Medicaid district has been received prior to March 15, 2010, which states that the individual is losing full Medicaid coverage on or after March 15, 2010, the individual or other party receiving the notice shall notify the provider about such notice by March 22, 2010.

(7) On or after the preexisting compliance date, if the individual or any other party receives a notice from the Medicaid district that the individual is losing full Medicaid coverage, the individual or party must inform the provider within five days of receipt of the notice.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.8 OPWDD payments

(a) Services other than preexisting services.

(1) OPWDD may, subject to the availability of State funds, pay a provider for services given to an individual if:

(i) the individual is not now paying, and has not paid in the past, the full fee for the services, and no one else is now paying or has paid in the past the full fee for the services for the individual; and

(ii) the individual took all necessary steps to obtain and maintain full Medicaid coverage and was denied full Medicaid coverage; and

(iii) the provider is meeting its obligations under this Subpart; and

(iv) the individual has an immediate need for services and delaying the start of the services would endanger the individual's health or safety.

(2) OPWDD may also, subject to the availability of State funds, pay a provider for services given to an individual if:

(i) the individual is not now paying the full fee for the services, no one else is now paying the full fee for the services for the individual, and the individual does not now have full Medicaid coverage; and

(ii) the provider is meeting its obligations under this Subpart; and

(iii) the provider is legally prohibited from denying services to the individual, discharging the individual or discontinuing services to the individual.

(3) OPWDD may also, subject to the availability of State funds, pay a provider for services given to an individual if:

(i) either:

(a) the individual was paying the full fee for the services, or someone else was paying the full fee for the services for the individual, and the individual or the other party stopped paying the full fee for the services; or

(b) the individual had full Medicaid coverage and then lost full Medicaid coverage; and

(ii) the provider is meeting its obligations under this Subpart and section 633.12 of this Title; and

(iii) the individual has a continuing need for services and ending the services would endanger the individual's health or safety.

(4) OPWDD may also, subject to the availability of State funds and if the provider is meeting its obligations under this Subpart, pay a provider the full fee if it has approved a waiver of the fee, or pay the difference between the reduced fee and the full fee if it has approved the reduced fee.

(5) Medicaid service coordination (MSC). OPWDD may, subject to the availability of State funds, pay a provider for up to three months of MSC if:

(i) the individual does not have full Medicaid coverage and MSC is necessary to assist the individual in obtaining full Medicaid coverage;

(ii) the individual is not paying for MSC and no one else is paying for MSC; and

(iii) the provider is meeting its obligations under this Subpart.

(b) Preexisting services.

(1) OPWDD may, subject to the availability of State funds, pay a provider for preexisting services given to an individual if:

(i) the individual is not paying for the preexisting services and no one else is paying for the services for the individual; and

(ii) the individual does not have full Medicaid coverage; and

(iii) the provider is meeting its obligations under this Subpart; and

(iv) OPWDD was paying the provider for the preexisting services immediately prior to the preexisting compliance date, or the individual had full Medicaid coverage immediately prior to the preexisting compliance date.

(2) OPWDD may, subject to the availability of State funds and if the provider is meeting its obligations under this Subpart, pay a provider the full fee if it has approved a waiver of the fee, or the difference between the reduced fee and the full fee if it has approved the reduced fee.

(1) any payments the provider receives on behalf of the individual for services; and

(2) any payments the individual receives to pay for services; and

(3) any income and resources OPWDD determines the individual or a liable party has available to pay for services.

(d) If a provider receives OPWDD payments under this section for services, and also receives monies for services from another source, the provider shall owe OPWDD the amount by which the total payment exceeds the fees for the services.

(e) Any payment by OPWDD shall not constitute nor be construed as a release from liability for services. (See section 635-12.11 of this Subpart.)

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.9 Fee schedules

(a) This section applies to all services, whether or not they are preexisting services.

(b) For community residential habilitation services (delivered in a community residence which is not an individualized residential alternative [IRA]), the fee shall equal the Medicaid fee OPWDD established for the community residential habilitation services for the dates the services were provided.

(c) For residential habilitation services provided in an IRA, the fee shall equal the Medicaid price OPWDD established for the IRA residential habilitation services for the dates the services were provided.

(d) For residential habilitation services provided in a family care home, the fee shall equal the Medicaid price OPWDD established for the family care residential habilitation services for the dates the services were provided.

(e) For at home residential habilitation services, the fee shall equal the Medicaid fee OPWDD established for the at home residential habilitation services for the dates the services were provided.

(f) For day treatment services, the fee shall equal the Medicaid fee OPWDD established for the day treatment facility for the dates the services were provided.

(g) For an ICF/DD, the fee shall equal the Medicaid rate OPWDD established for the ICF/DD for the dates the services were provided, excluding any day program services add-on for education and related services in accordance with Title 8 NYCRR.

(h) For day habilitation services, the fee shall equal the Medicaid price OPWDD established for the day habilitation services for the dates the services were provided.

(i) For Medicaid service coordination, the fee shall equal the payment level applicable to the individual's situation as stated in the Medicaid service coordination vendor contract between the provider and OPWDD in effect on the dates the services were provided.

(j) For prevocational services, the fee shall equal the Medicaid price OPWDD established for the prevocational services on the dates the services were provided.

(k) For supported employment services, the fee shall equal the Medicaid fee OPWDD established for the supported employment services for the dates the services were provided.

(l) For respite services, the fee shall equal the Medicaid price OPWDD established for the respite services for the dates the services were provided.

(m) For blended or comprehensive services, the fee shall equal the price OPWDD established for the blended or comprehensive services for the dates the services were provided.

(n) For hourly community habilitation services, the fee shall equal the Medicaid fee OPWDD established for the hourly community habilitation services for the dates the services were provided.

(o) For community habilitation phase II services, the price shall equal the Medicaid fee OPWDD established for community habilitation phase II services for the dates the services were provided.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.10 Denial, discharge or discontinuation of services

(a) Preexisting services.

A provider may not discharge an individual from preexisting services or otherwise discontinue preexisting services to an individual because of failure to pay.

(b) Services other than preexisting services-denial of services.

(1) The provider may deny the request for services:

(i) if the individual does not have full Medicaid coverage; and

(ii) if the provider has not received reasonable assurance that the individual or other liable party will pay for the services in accordance with this Subpart; and

(iii) if the fees have not been waived.

(2) Notwithstanding the provisions of paragraph (1) of this subdivision, a provider may not deny services to an individual if the provision of services is otherwise required by law or court order.

(1) A provider may discharge an individual from services or otherwise discontinue services because of failure to pay.

(2) Providers must adhere to the provisions of section 633.12 of this Title and any law or regulation that applies to the discharge or discontinuation of services.

(3) Notwithstanding the provisions of paragraph (1) of this subdivision, a provider may not discharge an individual from services or discontinue services if the continuation of services is otherwise required by law or court order.

(d) Effect on liability for services.

(1) The responsibility of individuals and other liable parties to pay for services is not affected by any requirement in this section that providers continue to provide services to the individual despite failure to pay.

(2) The responsibility of individuals and other liable parties to pay for services continues during the time that proceedings are underway to discharge the individual or otherwise discontinue services.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-12.11 Effect on liability and entitlements

(a) This section applies to all services, whether or not they are preexisting services.

(b) Nothing in this Subpart shall be construed as a release of any liability for services, whether they were delivered before, on or after the payment start date.

(c) Any reduction or waiver of a fee shall not constitute nor be construed as a release of the individual or any liable party from liability for payment of the full fee.

(d) Nothing in this Subpart shall be deemed to create any entitlement to services.

History

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

Subpart 635-13 Independent Practitioner Services for Individuals With Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-13.1 Applicability and service definition

(a) This Subpart is applicable to independent practitioner services for individuals with developmental disabilities (IPSIDD) provided to individuals who meet the eligibility criteria specified in this Subpart.

(b) IPSIDD is a Medicaid State plan service that consists of clinical services identified in subdivision (c) of this section provided on and after April 1, 2016.

(c) IPSIDD services include the following clinical services that are not delivered as part of an individual's residential and/or day habilitation service:

(1) occupational therapy;

(2) physical therapy;

(3) speech and language pathology;

(4) psychology;

(5) social work.

(d) Independent practitioners must comply with the requirements of this Subpart to provide and receive reimbursement for IPSIDD.

History

Adopted New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-13.3 Qualifications for providing and billing for IPSIDD

(a) To provide and bill for IPSIDD the independent practitioner must be a clinician licensed in New York State:

(1) whose name and credentials have been submitted to, and verified by, OPWDD; and

(2) who has had specialized training and two years of experience treating individuals with developmental disabilities.

(b) An applied behavioral sciences specialist (ABSS) may provide IPSIDD under the supervision of a licensed psychologist who meets the qualifications specified in subdivision (a) of this section. The ABSS must have a Master's degree in a clinical and/or treatment field of psychology from an accredited institution and/or a New York State license in mental health counseling and training in assessment techniques and behavioral program development.

(c) To bill for IPSIDD, the independent practitioner must coordinate service provision with other providers of services identified in section 635-13.1(c) of this Subpart in order to prevent duplication of services.

History

Adopted New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

Subpart 635-16 Crisis Services for Individuals With Intellectual And/or Developmental Disabilities (CSIDD)

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-16.1 Applicability

(1) These regulations apply to all providers certified by the New York Office for People With Developmental Disabilities (OPWDD), pursuant to section 16.03 (a)(5) of the Mental Hygiene Law, to provide Crisis Services for Individuals with Intellectual and/or Developmental Disabilities.

History

Adopted New York State Register January 6, 2021/Volume XLIII, Issue 01, eff. 1/6/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-16.2 Qualifications for Providers of CSIDD

(a) In order to provide CSIDD services, the provider must:

(1) be certified by OPWDD, pursuant to section 16.03 (a)(5) of the Mental Hygiene Law, to provide CSIDD;

(2) be OPWDD or a not-for-profit agency approved by OPWDD;

(3) enroll in the New York State Medicaid program;

(4) have sufficient professional staff to operate in their region; and

(5) coordinate a network of providers to ensure coordination of services for CSIDD recipients.

History

Adopted New York State Register January 6, 2021/Volume XLIII, Issue 01, eff. 1/6/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-16.3 Eligibility Requirements for Individuals to be Enrolled in CSIDD

(a) Eligibility for CSIDD must be determined by the Developmental Disabilities Regional Offices (DDRO) prior to the provision of services.

(b) Individuals may be eligible for enrollment in CSIDD, if they:

(1) are enrolled in Medicaid;

(2) are six (6) years of age or older; and

(3) meet the Medical Necessity Criteria, which includes having:

(i) established eligibility for OPWDD services; and

(ii) significant behavioral and/or mental health needs.

History

Adopted New York State Register January 6, 2021/Volume XLIII, Issue 01, eff. 1/6/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-16.4 Service Description

(a) CSIDD is a short-term rehabilitative service targeted for individuals with intellectual and/or developmental disabilities (I/DD) who have significant behavioral or mental health needs. Services are delivered by multi-disciplinary teams that provide personalized, intensive, time-limited services to individuals meeting the CSIDD eligibility criteria.

(b) CSIDD services must not replace or duplicate services in the community already available to the individual.

(c) While the individual is enrolled in CSIDD, the individual's system of support, including their involved family members/caregivers, must be permitted to be active participants in the process including the provision of any applicable informed consent, ongoing person-centered planning, discussion, and participation in the delivery of CSIDD.

History

Adopted New York State Register January 6, 2021/Volume XLIII, Issue 01, eff. 1/6/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-16.5 Elements of CSIDD

(a) Allowable Services

(1) CSIDD includes, but is not limited to:

(i) crisis response and/or 24-hour emergency support;

(ii) conducting relevant/ongoing assessments

(iii) communicating and exchanging relevant information with other professionals or service providers about the individual;

(iv) communicating with the individual, their family/caregivers, or others through written reports, telephone contacts, electronic contacts or face-to-face encounters;

(v) planned and/or emergency in-home clinical support;

(vi) training of the primary caregiver(s) and/or support system who provide natural supports and services to the individual on how to use behavioral supports, interventions, and strategies specified in the CSIDD treatment plan; and

(vii) monitoring the implementation of the CSIDD treatment plan through:

(a) observing the individual, family, and/or staff as they utilize supports, interventions, and strategies;

(b) following up with the support system on the effectiveness of the supports, interventions, and strategies; and

(b) Referrals

(1) Within two (2) hours of receiving a referral, the CSIDD provider must contact the individual and their caregiver to make them aware of the referral, explain the service, and begin the assessment process.

(2) CSIDD providers must submit the completed referral packet to the DDRO for authorization.

(3) If the referral packet is authorized by the DDRO, the CSIDD team must assign a CSIDD Clinical Team Coordinator. The CSIDD Clinical Team Coordinator must notify the family/caregivers of the DDRO's CSIDD authorization for the individual to schedule an intake meeting no more than seventy-two (72) hours after the case is assigned to the coordinator.

(4) If the referral is not authorized by OPWDD, the CSIDD Provider must make recommendations to the referral source for other services, as appropriate.

(5) All referrals received by the CSIDD Provider must be tracked and reported monthly to the DDRO in a form and format required by OPWDD.

(1) The Clinical Team Leader or Clinical Team Coordinator, under the supervision of the Clinical or Medical Director, is responsible for completing individual clinical assessments.

(2) Clinical assessments must include standardized clinical questionnaires required by OPWDD.

(3) The individual must be assessed no less frequently than every three months; specifically, at the following intervals:

(i) at the time of the individual's referral/prior to developing a treatment plan;

(ii) any time they experience a significant change (e.g., improvement or decompensation) in their behavioral or psychiatric symptom presentation;

(iii) when any life-altering incident takes place that is likely to impact the individual's level of intensity;

(iv) within three months of last assessment, if no other triggering event has been identified; and

(v) when discharged from CSIDD services.

(d) CSIDD Treatment Planning

(1) Clinical staff, under the supervision of the Clinical Director, Medical Director, or consultant (as described in Subpart 635-13.5), must develop an individualized clinical crisis plan and treatment plan based on the results of clinical assessments.

(2) The CSIDD Clinical Team Coordinator must consult with the team to identify which CSIDD services are appropriate and the enrolled individual should receive. These services must be listed in the individual's CSIDD treatment plan.

(3) The Clinical Director, Medical Director, or consultant is ultimately responsible for the content of the treatment plan, though they may designate a different team member to develop a crisis plan or treatment plan for individual cases.

(5) The CSIDD treatment plan must be drafted as soon as possible within thirty (30) days of the individual's CSIDD referral. The CSIDD treatment plan must:

(i) identify the date (e.g., day, month, and year) the treatment plan was initially developed, as well as the date of any review or revision;

(ii) contain the names, signatures, and titles of the clinical staff who participated in the development of the treatment plan;

(iii) identify the intensity of the needs of the individual and their system of support;

(iv) identify the support system(s) the CSIDD provider will collaborate with;

(v) be developed with the goal of preventing the occurrence of similar crisis events in the future;

(vi) provide a clear, concrete and realistic set of treatment and supportive interventions that prevents, de-escalates, and protects the individual from experiencing future behavioral health crisis; and

(vii) include realistic and attainable goals and activities that reduce the symptoms associated with behavioral health conditions and restore the individual to achieve their best possible functioning.

(6) The CSIDD provider must submit the initial CSIDD treatment plan, and all subsequent finalized revised plans, to the individual's Care Manager to be included as part of the individual's record.

(e) CSIDD Services

(1) CSIDD providers must offer clinical consultation and treatment while maintaining 24/7 service accessibility throughout the individual's enrollment of CSIDD.

(2) The treatment services provided must be identified as part of the individual's CSIDD treatment plan and be provided on an individualized basis per the individual's needs and treatment goals as outlined in their treatment plan.

(3) All services provided must be for the direct benefit of the individual and for the purpose of assisting in their stabilization.

(4) CSIDD must be delivered by clinical professionals under the supervision of a Clinical and/or Medical Director, or consultant as outlined in 16.5 of this section.

(f) Stabilization

(1) CSIDD's primary function is to restore individuals in crisis to stabilization. Stabilization activities include:

(i) skill building and restoration;

(ii) medication monitoring;

(iii) counseling to assist the individual and their family or caregiver with effectively responding to identified precursors or triggers that would risk their ability to remain in a natural community location;

(iv) assisting the individual and their family, caregivers or other supports with identifying a potential psychiatric or personal crisis;

(v) practicing de-escalation skills with the individual and their family, caregiver, or other supports; and

(vi) establishing other supports to restore and maintain stability and functioning.

(2) Individuals must receive CSIDD stabilization services commensurate with their identified level of need based on the assessment, service planning and reporting process (see 14 NYCRR 635-16.7).

(g) Monitoring

(1) The CSIDD team must:

(i) monitor the efficacy of the treatment plan and its implementation in supporting the individual's stabilization in preparation for discharge from CSIDD;

(ii) work with the individual's Care Manager and ensure they make service referrals as needed; and

(iii) review the CSIDD treatment plan at least monthly to ensure that the needs of the individual are being met in a timely fashion.

(h) CSIDD Discharge Planning

(1) Discharge planning must begin at the time of intake in order to maintain progress and prevent recurrent crisis upon discharge from CSIDD.

(2) A discharge plan must be a comprehensive and collaborative plan that identifies the individual's needs and the supports required from the system to ensure continuity of stability after discharge from CSIDD.

(3) The discharge plan must be reviewed and/or updated monthly in unison with the treatment plan.

(4) When an individual reaches a Stable status, CSIDD team members must begin the transition process with the individual and their support system for discharge from CSIDD. A provisional discharge date should be determined by all support members.

(5) When an individual holds a Stable status for one quarter, they must be discharged from CSIDD, unless granted an extension by the DDRO in the event of an exceptional circumstance.

(i) Case Reactivation

(1) After discharge, a case may be reactivated if needed, following a new referral received by the provider. The CSIDD provider must follow the referral process outlined at subdivision 635-16.5(b).

(2) At reactivation, the assessments must be re-administered, and all previously completed tools must be updated by the CSIDD treatment team.

History

Adopted New York State Register January 6, 2021/Volume XLIII, Issue 01, eff. 1/6/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-16.6 Interdisciplinary Treatment Team

(a) The CSIDD interdisciplinary treatment team members must include an array of clinical behavioral health disciplines appropriate for providing multidisciplinary assessment and treatment.

(b) CSIDD delivered by Clinical Team Leaders, Clinical Team Coordinators, and other professional clinical staff must be done under the supervision of the Clinical Director, Medical Director, or consultant.

(1) A Clinical Director or Medical Director;

(2) Clinical Team Leaders; and

(3) Clinical Team Coordinators.

(d) Consultants

(1) If a CSIDD provider has a Clinical or Medical Director who does not meet the credentials required in subdivision (e) of this section, the provider may hire a consultant to support the Clinical or Medical Director in providing supervision and oversight to the interdisciplinary team.

(2) CSIDD providers must receive prior OPWDD approval before hiring a consultant in instances where the Clinical or Medical Director does not meet the credentials required in subdivision (e) of this section.

(3) Consultants must meet the credentials of a Clinical or Medical Director outlined in subdivision (e) of this section.

(e) Interdisciplinary Treatment Team Qualifications

(1) Clinical Director:

(i) must have a Ph.D. or Psy.D. in Psychology, be licensed to practice in New York State, and operate within the scope of the practice of their state license; or

(ii) be supported by a consultant meeting the credentials set forth under 14 NYCRR 635-16(d).

(2) Medical Director:

(i) must have an M.D./D.O. or APDN, be licensed to practice in New York State, and operate within the scope of the practice of their state license; or

(ii) be supported by a consultant meeting the credentials set forth in under 14 NYCRR 635-16(d).

(iii) Clinical Team Leaders: must have a doctorate or master's degree in social work, counseling, Psychology, or other human service field.

(iv) Clinical Team Coordinators: must have a doctorate or master's degree in social work, counseling, Psychology, or other human service field.

(v) Other Professional Clinical Staff: including those who deliver emergency or planned in-home services, must operate under the supervision of the Clinical Director, Medical Director or consultant.

(f) Interdisciplinary Treatment Team Experience and Training

(1) All CSIDD staff must have at least one year of relevant experience with the behavioral health aspects of I/DD and complete training in the mental health aspects of I/DD.

History

Adopted New York State Register January 6, 2021/Volume XLIII, Issue 01, eff. 1/6/2021

Part 636 Services And Supports For Individuals With Developmental Disabilities

Subpart 636-1 Person-Centered Planning

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-1.1 Applicability

(a) This Subpart applies to:

(1) Medicaid Home and Community Based Services (HCBS) that are operated, certified, funded, or subject to oversight by OPWDD; and

(2) Care Management, by whatever name known, that is subject to oversight by OPWDD and provided to individuals who receive HCBS that are operated, certified, funded, or subject to oversight by OPWDD.

(b) This subpart applies to the assessment of functional and healthrelated needs process and the service planning process for all services approved, authorized, certified and/or funded by OPWDD.

History

Adopted, New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-1.3 Person-centered service plan

(a) The person-centered service plan is created using the planning process described in section 636-1.2 of this subpart. The person-centered service plan may also be known as the individualized service plan (ISP, see definition in section 635-99.1 of this Title) or Life Plan.

(b) The individual's Care Manager must develop a person-centered service plan with the individual. The plan must include and document the following:

(1) the individual's goals and desired outcomes;

(2) the individual's strengths and preferences;

(3) the individual's clinical and support needs as identified through an assessment of functional and health-related needs;

(4) the necessary and appropriate services and supports (paid and unpaid) that are based on the individual's preferences and needs (as identified through an assessment of functional and health-related needs) and that will assist the individual to achieve his or her identified goals;

(5) the services that the individual elects to self-direct;

(6) the providers of those services and supports specified in paragraph (4) and (5) of this subdivision;

(7) if an individual resides in a certified residential setting, document that the residence was chosen by the individual, and document the alternative residential settings considered by the individual, including alternative residential settings that are available to individuals without disabilities (Note: The setting chosen by the individual is integrated in, and supports full access of individuals receiving services to the broader community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community with the same degree of access as the broader community . The individual may choose service and support options that are available to individuals without disabilities for his or her residence and other areas of his or her life);

(8) the risk factors and measures in place to minimize risk, including individual specific back-up plans and strategies when needed; and

(9) the individual and/or entity responsible for monitoring the plan.

(c) The Care Manager must develop the person-centered service plan in a way that is understandable to the individual and parties chosen by the individual. At a minimum, for the written plan to be understandable, it must be written in plain language and in a manner that is accessible to the individual, to the extent possible, and parties chosen by the individual.

(d) The plan must be finalized and agreed to with the individual's written informed consent and signed by the provider(s) responsible for implementing the person-centered service plan.

(e) The Care Manager must distribute the person-centered service plan to the individual and parties involved in the implementation of the plan.

(f) The individual, parties chosen by the individual, the service provider, and Care Manager must review the person-centered service plan described in subdivision (b) of this section and paragraphs 636-1.4(a)(3) and (4) of this subpart, and the Care Manager must revise such plan if necessary, as follows:

(1) at least semi-annually;

(2) when the capabilities, capacities, or preferences of the individual have changed and warrant a review;

(3) at the request of the individual and/or parties chosen by the individual;

(4) when it is determined that the existing plan (or portions of the plan) is/are ineffective; and

(5) upon reassessment of the individual's functional need.

History

Adopted, New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-1.5 Notice of the person-centered planning process and plan

(a) The service coordinator must give notice of the individual's right to a person-centered planning process in accordance with section 636-1.2 of this Subpart and to a person-centered plan in accordance with section 636-1.3 of this Subpart, and of the right to object to services pursuant to section 633.12 of this Title, to the individual and the person upon whom decision-making authority is conferred by State law (see section 636-1.2[a][1] of this Subpart), if any, in the following manner:

(1) for individuals who do not have an ISP in place on November 1, 2015, the service coordinator must give written notice prior to the initiation of the person-centered planning process and development of the plan; or

(2) for individuals who have an ISP in place on November 1, 2015, the service coordinator must give written notice at the time of the individual's next ISP review.

(b) Such information must be conveyed in plain language and in a manner that is accessible to and understood by the parties specified in subdivision (a) of this section, where necessary to facilitate comprehension.

History

Adopted, New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-1.6 Assessment of Functional and Health-Related Needs

(a) OPWDD or its designee will use an OPWDD approved assessment to conduct an initial assessment and/or re-assessment of functional and health-related needs for each individual applying for or receiving services approved, authorized, funded or certified by OPWDD.

(b) OPWDD will use the results of the assessments described in subdivision (a) of this section, in conjunction with additional information supporting an individual's medical, behavioral, habilitative and/or functional needs, to inform service authorization decisions.

History

Adopted New York State Register April 11, 2018/Volume XL, Issue 15, eff. 4/11/2018

Subpart 636-2 Home and Community Based Services and Settings Requirements

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-2.1 Applicability

(a) This Subpart applies to the following services and settings:

(1) Medicaid Home and Community Based Services (HCBS) that are operated, certified, funded, authorized, approved, or subject to oversight by OPWDD and/or its authorized provider(s), except those services identified in subdivision 636-2.1(b); and

(2) Settings where HCBS are delivered, except those settings identified in subdivision 636-2.1(b).

(b) This Subpart does not apply to HCBS Respite services and settings (see subdivisions 635-10.4(g) and 635-10.5(h) of this Title).

History

Adopted New York State Register May 29, 2019/Volume XLI, Issue 22, eff. 5/29/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-2.2 Background and Intent

(a) It is the intent of this Subpart to require Medicaid Home and Community Based Services (HCBS) that are operated, certified, funded, authorized, approved, or subject to oversight by OPWDD, and/or an OPWDD authorized provider, to be delivered in integrated settings that do not isolate individuals receiving Medicaid HCBS from the broader community of people not receiving Medicaid HCBS.

(b) HCBS supports and services must encourage individuals to take part in the broader community in a way that is meaningful to the individual, in accordance with:

(1) a person-centered service plan developed, implemented, and reviewed in compliance with Subpart 636-1 of this Part;

(2) applicable HCBS requirements in Subpart 635-10 of this Title; and

(3) sections 636-2.3, 636-2.4, and 636-2.5 of this Subpart.

History

Adopted New York State Register May 29, 2019/Volume XLI, Issue 22, eff. 5/29/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-2.4 General Provisions

(a) Any setting where Medicaid HCBS are delivered must have all the following qualities and meet all the following conditions based on the needs and goals of the individual receiving HCBS as identified in his/her person-centered service plan:

(1) The setting must be integrated and support full access of individuals receiving HCBS to the broader community. It must support opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community with the same degree of access as the broader community.

(2) The setting must be selected by the individual from among setting options, including non-disability specific settings, and an option for a private home or private bedroom in a residential setting, where applicable. The setting options must be identified and documented in the person-centered service plan or other planning/service related documents and must be based on the individual's needs, preferences and, for residential settings, resources available for room and board.

(3) The setting must ensure the individual's rights of privacy, dignity, and respect, and freedom from coercion and restraint.

(4) The setting must optimize, and not regiment, individual initiative, autonomy, and independence in making life choices including, but not limited to, the individual's decisions regarding daily activities, physical environment, and with whom to interact.

(5) The setting must facilitate individual choice regarding services and supports and who provides them.

(6) The individual must have freedom and support to control his or her own schedules and activities, consistent with the same or similar settings for the broader community.

(7) The individual must have access to food at any time, consistent with the same or similar settings for the broader community.

(8) The individual must be able to have visitors of his or her choosing at any time, consistent with the same or similar settings for the broader community.

(9) The setting must be physically accessible to the individual.

(b) In addition to those qualities and conditions described in paragraphs 636-2.4(a)(1) through (9), all the following conditions must be met in OPWDD-operated or provider owned or controlled residential settings:

(1) The individual's residence must be a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under applicable landlord/tenant law. For a residence in which landlord/ tenant laws do not apply, there must be a lease, residency agreement, or other form of written agreement for the individual that provides for eviction processes and appeals comparable to those provided under applicable landlord/tenant law.

(2) The individual must have privacy in his or her residence and bedroom to the extent applicable.

(i) Residences and bedrooms within residences must have entrance doors lockable by the individual, with only appropriate parties having keys/access to doors as needed.

(ii) The individual sharing a bedroom in an OPWDD-operated, provider owned or controlled, or certified residential setting must have a choice of roommates in that setting. In non-certified provider owned or controlled residential settings, individuals must freely choose to share their residence and have a choice of roommates in the residence and in bedrooms, where applicable.

(iii) The individual must have freedom to furnish and decorate his or her residence and bedroom within the lease or other agreement.

(c) In OPWDD-operated or certified settings and other provider owned or controlled residential and non-residential settings, any modification to the qualities or conditions in paragraphs 636-2.4(a)(6), (a)(7), or (a)(8) or subdivision 636-2.4(b) must be supported by a specific assessed need, justified, and documented in the individual's person-centered service plan or other internal guidance document(s) pursuant to section 636-1.4 of this Part. The Medicaid HCBS provider agency must maintain such documentation as required by OPWDD.

Note: Providers subject to section 633.16 of this Title must consult that section for additional documentation requirements concerning person-centered behavioral intervention. Providers subject to section 633.4 of this Title must consult that section for documentation requirements concerning modifications of rights of individuals receiving services that are not duplicated in paragraphs 636-2.4(a)(6), (a)(7), (a)(8) and subdivision (b) of this section.

(d) HCBS settings do not include the following:

(1) A nursing facility;

(2) An institution for mental diseases;

(3) An Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID);

(4) A hospital providing long-term care services;

(5) A sheltered workshop that is not integrated (on or after March 17, 2022);

(6) A private residential school; or

(7) Any other setting that does not pass a heightened scrutiny review process as prescribed and determined by the Centers for Medicare and Medicaid Services (CMS), DOH, and/or OPWDD.

History

Adopted New York State Register May 29, 2019/Volume XLI, Issue 22, eff. 5/29/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-2.5 Heightened Scrutiny

A Medicaid HCBS setting subject to heightened scrutiny, as defined in subdivision 636-2.3(c) of this Subpart, will be reviewed in the form and format specified by CMS, DOH, and/or OPWDD.

History

Adopted New York State Register May 29, 2019/Volume XLI, Issue 22, eff. 5/29/2019

Certified Residential Opportunities Certified Residential Opportunities

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.1 Applicability

(a) This Subpart applies to all providers of residential facilities certified or operated by the Office for People With Developmental Disabilities (OPWDD) (referred to herein as "Residential Provider Agencies").

(b) This Subpart also applies to providers of OPWDD care management services, such as Comprehensive Health Home Care Management and Basic HCBS Plan Support.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.2 Background and Intent

(a) This Subpart contains requirements and processes for the provision of residential services to individuals with intellectual and developmental disabilities in residential facilities certified or operated by OPWDD (collectively "residential facilities").

(b) The most integrated and least restrictive housing options must be explored for all individuals seeking services in residential facilities.

(c) Providers of care management services and Residential Provider Agencies must partner with OPWDD to facilitate the provision of residential services to individuals with intellectual and developmental disabilities, when appropriate.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.3 Statutory Authority

(a) Sections 13.01, 13.07, and 13.17 of the New York State Mental Hygiene Law authorize the commissioner of OPWDD to develop an effective, integrated, comprehensive system for the delivery of services to individuals with developmental disabilities.

(b) Section 13.09 of the New York State Mental Hygiene Law grants the commissioner of OPWDD the authority to promulgate rules and regulations necessary and proper to implement any matter under their jurisdiction.

(c) Sections 16.00 and 16.01 of the New York State Mental Hygiene Law enable the commissioner of OPWDD to regulate and assure the consistently high quality of services provided within the State to individuals with developmental disabilities.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.4 Responsibilities of Residential Provider Agencies

(a) Residential Provider Agencies must:

(1) notify OPWDD of any vacancies in residential facilities;

(2) timely review residential referrals;

(3) prioritize individuals for services in residential facilities who have been designated as having a higher need for such services;

(4) screen individuals referred for services in residential facilities to assess the appropriateness of the service needs of individuals referred for all available vacancies;

(5) submit screening reports to OPWDD following review of residential referrals and assessments; and

(6) adhere to all community placement and due process procedures in this Part for both internal and external moves (see e.g., section 633.12 of this Part).

(b) Residential Provider Agencies must submit site profile information for all residential facilities to OPWDD and update site profiles whenever changes occur. Changes include, but are not limited to, instances when:

(1) a new residential facility is added to an agency's residential inventory; or

(2) there is a substantive change in the composition of the residents, staffing, or features of a residential facility.

(c) Residential Provider Agencies must screen all individuals who appear appropriate for any of their current or anticipated vacancies, and all individuals specifically referred to them by OPWDD.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.5 Responsibilities of Providers of Care Management Services

(a) Prior to referring an individual for services in a residential facility, Care Managers must:

(1) ensure the individual has established OPWDD eligibility;

(2) ensure the individual has requested services in a residential facility; and

(3) have fully explored with the individual and their guardian, family, or advocate, as applicable, the possibility of remaining in their current residence or other community living arrangement with additional supports and services.

(b) For individuals who have an active referral for services in a residential facility, the Care Manager must ensure that OPWDD receives the individual's current information, including:

(1) their Life Plan;

(2) all updates to clinical and medical documents, including at the time of the annual physical and any relevant clinical event;

(3) changes in the Care Manager and/or the provider of care management services;

(4) any changes in circumstances that might impact an individual's residential support category; and

(5) any other relevant information.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.6 Levels of Need for Certified Residential Services

(a) OPWDD will assess and determine whether an individual requires services in a residential facility and the individual's level of need.

(b) Levels of need for services in residential facilities are designated by OPWDD to determine the prioritization of individuals for available opportunities in residential facilities.

(c) Levels of need are determined by OPWDD and are based on factors including, but not limited to, level of care required due to an individual's developmental or intellectual disability, availability and adequacy of an individual's natural supports, and risk of harm associated with an individual's current situation.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.7 Residential Referral Process

(a) Residential Provider Agencies must attempt to fill any current or anticipated vacancies with individuals designated by OPWDD as having the highest level of need prior to considering other individuals for available residential services.

(b) Residential Provider Agencies may only consider individuals designated as having lower levels of need upon receipt of prior approval from OPWDD.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-3.8 Internal Moves

(a) Internal moves are those that move an individual currently residing in a residential facility to another residential facility operated by the same Residential Provider Agency.

(1) OPWDD must be notified prior to any internal move.

(2) OPWDD approval is required prior to any internal move that will result in the relocation of an individual outside of their current district.

(3) Ifan internal move will change the location of a vacancy that was previously announced, OPWDD must be notified of the new vacancy location.

(b) Internal moves must comply with all applicable regulations and guidance relating to due process, including, but not limited to, section 633.12 of this Part and OPWDD's Community Placement Procedures.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 3/14/2023

Part 641 Rate Setting For Non-state Providers

Subpart 641-1 Rates for Non-State Providers of Residential Habilitation in Community Residences, Including Individualized Residential Alternatives (IRAs), and for Non-State Providers of Day Habilitation

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-1.1 Rate Setting For Non-State Providers

Rates of reimbursement for residential habilitation services provided in community residences, including IRAs, and for day habilitation services, other than those provided by OPWDD, shall be determined in accordance with Title 10 NYCRR 86-10.The rates of payment made for services rendered to title XIX recipients established in accordance with the methodology contained in this Title10 NYCRR Part 86-10 shall be contingent upon Federal financial participation (FFP) and approval.

History

Adopted, New York State Register July 2, 2014/Volume XXXVI, Issue 26, eff. 7/2/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-1.5 Trend Factor

For years in which DOH does not update the base year, subject to the approval of the Director of the Budget, DOH may use a compounded trend factor to bring base year costs forward to the appropriate rate period. The trend factor shall be taken from applicable years from consumer and producer price indices, including, but not limited to the Medical Care Services Index; U.S. city average, by expenditure category and commodity and service group for the period April to April of each year.

History

Adopted, New York State Register July 2, 2014/Volume XXXVI, Issue 26, eff. 7/2/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-1.6 Transition periods and reimbursement

(a) Transition to new methodology. The reimbursement methodology described in this subpart will be phased-in over a three-year period, with a year for purposes of the transition period meaning a twelve month period from July 1st to the following June 30th, and with full implementation in the beginning of the fourth year. During this transition period, the base operating rate will transition to the target rate as determined by the reimbursement methodology described in this subpart, according to the phase-in schedule immediately below. The base operating rate will remain fixed and the target rate, as determined by the reimbursement methodology in this subpart, will be updated to reflect rebasing of cost data, trend factors and other appropriate adjustments.

| | Phase-in Percentage | | | --- | --- | --- | | Transition Year | Base operating rate | Target Rate | | Year One (July 1, 2014 - June 30, 2015) | 75% | 25% | | Year Two (July 1, 2015 - June 30, 2016) | 50% | 50% | | Year Three (July 1, 2016 -June 30, 2017) | 25% | 75% | | Year Four (July 1, 2017 - June 30, 2018) | 0% | 100% |

(b) Transition from monthly to daily units of service. Reimbursement for residential habilitation provided in supervised community residences shall be according to a daily unit of service. From the period beginning July 1, 2014 through June 30, 2015, providers that receive reimbursement of residential habilitation in supervised community residences pursuant to this Subpart shall determine and report to DOH retainer days, therapeutic leave days and vacant bed days.

(1) Retainer days shall mean days during which an individual is on medical leave from the community residence, or associated days when any other institutional or in-patient Medicaid payment is made for providing services to the individual.

(i) Retainer days shall be reimbursed at zero dollars.

(ii) At the mid-point and again at the conclusion of the period ending June 30, 2015, DOH will reconcile the services recorded under the retainer days in order to determine the amount of reimbursement owed to the provider. Providers shall be paid for retainer days at the level described in subdivision (a) of this section.

(iii) Providers shall not be paid for more than fourteen retainer days per annual period for any one individual.

(2) Therapeutic leave days shall mean days during which an individual is away from the community residence and is not receiving services from residential habilitation staff, and the absence is for the purpose of visiting with family or friends, or a vacation. Therapeutic leave days shall be reimbursed at the level described in subdivision (a) of this section.

(3) Vacant bed days shall mean days for which the provider is unable to bill due to a resident moving from one residential site to another, or due to a resident passing away. At the conclusion of the period ending June 30, 2015, providers will be paid for vacant bed days at seventy five percent of the level described in subdivision (a) of this section up to a maximum of ninety days per bed.

(1) The daily rate, as determined pursuant to this Subpart, excluding section 641-1.8 will be adjusted to include an occupancy factor.

(2) Retainer days shall be reimbursed at the daily rate as determined pursuant to paragraph (1) of this subdivision. Such reimbursement shall be limited to fourteen days per individual.

(3) Therapeutic leave days shall be reimbursed per individual at the daily rate as determined pursuant to paragraph (1) of this subdivision.

History

Adopted, New York State Register July 2, 2014/Volume XXXVI, Issue 26, eff. 7/2/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-1.7 Rate corrections

(a) Arithmetic or calculation errors will be adjusted accordingly in instances that would result in a change of $5,000 or more in a provider's annual reimbursement for either residential habilitation services provided in community residences or day habilitation services.

(b) In order to request a rate correction in accordance with subdivision (a) of this section, the provider must send to Department of Health its request by certified mail, return receipt requested, within 90 days of the provider receiving the rate computation or within 90 days of the first day of the rate period in question, whichever is later.

History

Adopted, New York State Register July 2, 2014/Volume XXXVI, Issue 26, eff. 7/2/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-1.8 Specialized template populations

Notwithstanding any other provision of this Subpart, rates for individuals identified by OPWDD as qualifying for specialized template populations funding shall be as follows. As used in this section, "Downstate" means the counties of New York, Kings, Bronx. Queens, Richmond, Nassau, Suffolk, Westchester, Rockland, Orange, Sullivan, Putnam and Dutchess, and "Upstate" means all other counties in New York State.

(a) For individuals initially identified as qualifying for specialized template populations funding between November 1, 2011 and March 31, 2014

| Residential - Specialized Level of Care | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating only) | | Downstate | $166,400 | | Upstate | $150,500 |

| Residential - Highly Complex Level of Care | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating only) | | Downstate | $189,500 | | Upstate | $171,500 |

| Residential - Auspice Change | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating only) | | Downstate | $136,500 | | Upstate | $123,500 |

| Day Hab - Specialized Level of Care | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating only) | | Downstate | $41,730 | | Upstate | $37,562 |

| Day Hab - Highly Complex Level of Care | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating only) | | Downstate | $46,433 | | Upstate | $43,063 |

(b) For individuals initially identified as qualifying for specialized template populations funding after March 31, 2014

| Residential - Highly Complex Level of Care | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating only) | | Downstate | $189,500 | | Upstate | $171,500 |

| Residential - Auspice Change | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating Only) | | Downstate | $136,500 | | Upstate | $123,500 |

| Day Hab - Highly Complex Level of Care | | | --- | --- | | Region | Gross Annual Funding Allocation Per Individual (Operating only) | | Downstate | $46,433 | | Upstate | $43,063 |

History

Adopted, New York State Register July 2, 2014/Volume XXXVI, Issue 26, eff. 7/2/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-1.9 Severability

If any provision of this Subpart or its application to any person or circumstance is held to be invalid, the remainder of this Subpart and the application of that provision to other persons or circumstances will not be affected.

History

Adopted, New York State Register July 2, 2014/Volume XXXVI, Issue 26, eff. 7/2/2014

Subpart 641-2 Rates For Non-state Providers Of Intermediate Care Facilities For Persons With Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-2.1 Applicability

Rates of reimbursement for intermediate care facilities for persons with developmental disabilities (ICF/DD), other than those operated by OPWDD, shall be determined in accordance with 10 NYCRR Part 86-11. The rates of payment made for services rendered to title XIX recipients established in accordance with the methodology contained in 10 NYCRR Part 86-11 shall be contingent upon Federal financial participation (FPP) and approval.

History

Adopted, New York State Register July 2, 2014/Volume XXXVI, Issue 26, eff. 7/2/2014

Subpart 641-3 Direct Support and Clinical Compensation Increases

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-3.1 Applicability

On or after January 1, 2015, rates of reimbursement for providers that operate eligible programs as defined in this Subpart will be revised to incorporate funding for compensation increases to their direct support professional employees. Such rate increases will be effective January 1, 2015. The compensation increase funding will be included in the provider's rate issued for January 1, 2015 or in a subsequent rate with the inclusion of funding in the amount necessary to achieve the same funding impact as if the rate had been issued on January 1, 2015. The compensation increase funding will be inclusive of associated fringe benefits.

History

Adopted New York State Register March 25, 2015/Volume XXXVII, Issue 12, eff. 3/25/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-3.2 Definitions

As used in this Subpart, the following terms shall have the following meanings:

(a) Direct support professionals are those defined as Direct Care and Support per Consolidated Fiscal Report (CFR) Appendix R and reported on the CFR under the Position Title code identifiers of 100 or 200. Contracted staff salary information will not be utilized.

(b) Clinical staff are those defined as Clinical per CFR Appendix R and reported on the CFR under the Position Title code identifier of 300. Contracted staff salary information will not be utilized.

(c) Eligible Rate Based Programs shall mean any of the following services: supervised community residences (including supervised IRAs), supportive community residences (including supportive IRAs), ICFs/DD or group day habilitation programs.

(d) Other Eligible Programs shall mean community habilitation, day treatment, supported employment, agency sponsored family care, respite and free standing respite, and prevocational services.

History

Adopted New York State Register March 25, 2015/Volume XXXVII, Issue 12, eff. 3/25/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-3.3 Increases for Eligible Rate Based Programs

(a) January 1, 2015 Increase. Rates for Eligible Rate Based Programs will be revised to incorporate funding for compensation increases to direct support professional employees. Such rate increases will be effective January 1, 2015. The compensation increase funding will be included in the provider's rate issued for January 1, 2015 or in a subsequent rate with the inclusion of funding in the amount necessary to achieve the same funding impact as if the rate had been issued on January 1, 2015. The compensation increase funding will be inclusive of associated fringe benefits.

(b) April 1, 2015 Increase. In addition to the compensation funding effective January 1, 2015, providers that operate supervised IRAs, including supervised community residences, supportive IRAs, including supportive community residences, ICFs/DD or group day habilitation will receive a compensation increase targeted to direct support professional and clinical employees to be effective April 1, 2015. The compensation increase funding will be inclusive of associated fringe benefits. The April 1, 2015 direct support professional compensation funding will be the same, on an annualized basis, as that which was calculated for the January 1, 2015 compensation increase and will be an augmentation to the January 1, 2015 increase.

(c) Calculations. The basis for the calculation of provider and regional direct care, support and clinical salary averages and associated fringe benefit percentages will be the data in providers' July 1, 2010 - June 30, 2011 or January 1, 2011 - December 31, 2011 CFRs.

(1) The January 1, 2015 and April 1, 2015 Direct Support Professionals compensation increase funding formula will be as follows:

(i) The annual impact of a two percent increase to 2010-11 or 2011 salaried direct care, salaried support dollars and associated fringe benefits will be calculated.

(ii) The annual impact of the two percent increase for salaried direct care dollars, salaried support dollars and associated fringe will be added to the appropriate operating components in the rate methodology. This will result in a recalculation of provider and regional average direct care wages, provider and regional average employee-related components, provider and regional average program support components, and provider and regional average direct care hourly rates.

(iii) The provider direct care hourly rate - adjusted for a wage equalization factor will be recalculated to utilize the provider average direct care hourly rate and regional average direct care hourly rate (as calculated in (ii) above).

(iv) An identification will be made of the dollar difference between the provider direct care hourly rate - adjusted for a wage equalization factor, which is in the rate in effect on 12/31/2014, and the provider direct care hourly rate- adjusted for a wage equalization factor, as calculated in (iii) above.

(v) The rate difference identified in (iv) above will be multiplied by the calculated direct care hours in the rate in effect on 12/31/2014 to calculate the additional funding generated by the direct care compensation adjustment.

(vi) The rate add-on for the compensation increase shall be determined by dividing the additional funding, as calculated in (v) above by the rate sheet units in effect on January 1, 2015.

(2) The April 1, 2015 Clinical compensation increase funding formula will be as follows:

(i) The annual impact of a two percent increase to 2010-11 or 2011 salaried clinical dollars and associated fringe benefits will be calculated.

(ii) The annual impact of the two percent increase for salaried clinical dollars and associated fringe will be added to the appropriate operating components in the rate methodology. This will result in a recalculation of provider and regional average employee-related compo- nents, and provider and regional average clinical hourly wages.

(iii) The provider clinical hourly wage - adjusted for a wage equalization factor will be recalculated to utilize the provider average clinical hourly wage and the regional average clinical hourly wage (as calculated in (ii) above).

(iv) An identification will be made of the dollar difference between the provider clinical hourly wage - adjusted for a wage equalization fac- tor, which is in the rate in effect on 12/31/2014, and the provider clinical hourly wage- adjusted for a wage equalization factor, as calculated in (iii) above.

(v) The rate difference identified in (iv) above will be multiplied by the provider salaried clinical hours in the rate in effect on 12/31/2014 to calculate the additional funding generated by the clinical compensation adjustment.

(vi) The rate add on for the compensation increase shall be determined by dividing the additional funding, as calculated in (v) above by the rate sheet units in effect on January 1, 2015.

(3) Rates for individuals identified by OPWDD as qualifying for specialized template populations funding shall be adjusted as follows:

(i) January 1, 2015 Increase. The fees for specialized template populations funding will be revised to incorporate funding for compensation increases to direct support professional employees. Such fee increases will be effective January 1, 2015. The compensation increase funding will be included in the provider's fee issued for January 1, 2015 or in a subsequent fee with the inclusion of funding in the amount necessary to achieve the same funding impact as if the fee had been issued on January 1, 2015. The compensation increase funding will be inclusive of associated fringe benefits.

(ii) April 1, 2015 Increase. In addition to compensation funding effective January 1, 2015, the fees for specialized template population funding will revised to incorporate funding for a compensation increase to direct support professional and clinical employees to be effective April 1, 2015. The April 1, 2015 direct support compensation funding will be the same, on an annualized basis, as that which was calculated for the January 1, 2015 compensation increase and will be an augmentation to the January 1, 2015 increase.

(iii) Calculations.

(a) The portion of the fee that is identified as direct care and sup- port will be increased by 2% and multiplied by the fee sheet fringe benefit percentage to calculate the additional direct support compensation increases for January first, two thousand fifteen and April first, two thousand fifteen.

(b) The portion of the fee that is identified as clinical will be increased by 2% and multiplied by the fee sheet fringe benefit percentage to calculate the additional clinical compensation increase for April first, two thousand fifteen.

History

Adopted New York State Register March 25, 2015/Volume XXXVII, Issue 12, eff. 3/25/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-3.4 Rates and Fees for Specialty Hospitals

(a) For a provider that operates any Other Eligible Programs, the provider's rate or fee for each such program will be revised to incorporate funding for compensation increases to their direct support professional employees. Such rate or fee increases will be effective January 1, 2015. The compensation increase funding will be included in the provider's rate or fee issued for January 1, 2015 or in a subsequent rate or fee with the inclusion of funding in the amount necessary to achieve the same funding impact as if the rate or fee had been issued on January 1, 2015. The compensation increase funding will be inclusive of associated fringe benefits.

(b) April 1, 2015 Increase. In addition to the compensation funding effective January 1, 2015, a provider that operates any Other Eligible Programs will receive a compensation increase targeted to direct support professional and clinical employees to be effective April 1, 2015. The April 1, 2015 direct care compensation funding will be the same, on an annualized basis, as that which was calculated for the January 1, 2015 compensation increase and will be an augmentation to the January 1, 2015 increase.

(1) The portion of the rate or fee that is identified as direct care and support will be increased by 2% and multiplied by the rate or fee sheet fringe benefit percentage to calculate the additional direct care compensation increases for January 1, 2015 and April 1, 2015.

(2) The portion of the rate or fee that is identified as clinical will be increased by 2% and multiplied by the rate or fee sheet fringe benefit percentage to calculate the additional clinical compensation increase for April 1, 2015.

History

Adopted New York State Register March 25, 2015/Volume XXXVII, Issue 12, eff. 3/25/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 641-3.5 Rates and Fees for Specialty Hospitals

(a) January 1, 2015 Increase. The rates of reimbursement for specialty hospitals as defined in Part 680 of this Title will be revised to incorporate funding for compensation increases to direct support professional employees. Such rate increases will be effective January 1, 2015. The compensation increase funding will be included in the provider's rate is- sued for January 1, 2015 or in a subsequent rate with the inclusion of funding in the amount necessary to achieve the same funding impact as if the rate had been issued on January 1, 2015. The compensation increase funding will be inclusive of associated fringe benefits.

(b) April 1, 2015 Increase. In addition to the compensation funding effective January 1, 2015, providers that operate specialty hospitals will receive a compensation increase targeted to direct support professional and clinical employees to be effective April 1, 2015. The compensation increase funding will be inclusive of associated fringe benefits. The April 1, 2015 direct support professional compensation funding will be the same, on an annualized basis, as that which was calculated for the January 1, 2015 compensation increase and will be an augmentation to the January 1, 2015 increase.

(c) Calculations. The basis for the calculation of direct care, support and clinical salary averages will be the data from the provider's January 1, 2011 - December 31, 2011 CFR. The fringe benefit percentage will be that fringe benefit percentage utilized in the provider's December 31, 2014 specialty hospital rate.

(1) The January 1, 2015 and April 1, 2015 Direct Support Professional compensation increase funding formula will be:

(i) The annual impact of a two percent increase to 2011 salaried direct care and salaried support dollars and associated fringe benefits will be calculated.

(iii) The rate add-on, as calculated in (ii) above, shall be added to total allowable costs and those allowable costs shall be divided by the total patient days in the December 31, 2014 rate.

(2) The April 1, 2015 Clinical compensation increase funding formula will be:

(i) The annual impact of a two percent increase to 2011 clinical dollars and associated fringe benefits will be calculated.

(ii) The annual impact of the two percent increase for salaried clinical dollars, and associated fringe will be added to the appropriate operating components in the provider's specialty hospital rate.

(iii) The rate add-on, as calculated in (ii) above, shall be added to total allowable costs and those allowable costs shall be divided by the total patient days in the December 31, 2014 rate.

History

Adopted New York State Register March 25, 2015/Volume XXXVII, Issue 12, eff. 3/25/2015

Part 643 Certificate of Relief from Disabilities (Prohibitions) Related to Firearms Possession

N.Y. Comp. Codes R. & Regs. Tit. 14 § 643.2 Applicability

This Part applies to any person who has been or may be disqualified from possessing a firearm pursuant to 18 USC section 922(d)(4) and (g)(4), due to being involuntarily committed to an OPWDD facility pursuant to article 15 of the Mental Hygiene Law, or article 730 or section 330.20 of the Criminal Procedure Law, or section 322.2 or 353.4 of the Family Court Act and whose records were submitted to NICS by OPWDD in accordance with section 13.09 (f) of the Mental Hygiene Law.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 643.3 Process

(a) Request for relief.

(1) An individual who has been or may be disqualified from attempting to purchase or otherwise possess a firearm in accordance with the provisions of section 13.09 (f) of the Mental Hygiene Law and whose records were submitted to NICS by OPWDD, may request administrative review by OPWDD to have his or her civil rights restored for such limited purpose.

(2) A request for relief shall be made on forms developed by OPWDD, which shall be available on OPWDD's public web site. At a minimum, the forms shall require the applicant to answer all of the following questions under penalty of perjury:

(i) Is the applicant under indictment for, or ever been convicted of, a crime punishable by imprisonment for more than one year?

(ii) Is the applicant a fugitive from justice?

(iii) Is the applicant an unlawful user of, or is addicted to, any controlled substance?

(iv) Has the applicant been adjudicated as having a mental disability or committed to a mental institution, including but not limited to involuntary commitment to an OPWDD facility (pursuant to article 15 of the Mental Hygiene Law, or article 730 or section 330.20 of the Criminal Procedure Law, or section 322.2 or 353.4 of the Family Court Act)? (Note: "adjudicated as having a mental disability" has the same meaning as the term "adjudicated as a mental defective" is defined in 27 C.F.R. 478.11. "Committed to a mental institution" has the same meaning as the term is defined in the cited Federal regulation.)

(v) Is the applicant an illegal alien, or has he/she been admitted to the United States under a nonimmigrant visa?

(vi) Was the applicant discharged from the U.S. Armed Forces under dishonorable conditions?

(vii) Has the applicant renounced U.S. citizenship?

(viii) Is the applicant subject or ever been subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or child?

(ix) Has the applicant been convicted in any court of a misdemeanor crime of domestic violence?

(3) In addition to the forms provided, the applicant shall be required to submit further information in support of the request for relief. The information must include, but is not limited to:

(i) true and certified copies of medical/clinical records detailing the applicant's psychiatric and/or intellectual or developmental disability history, which shall include records pertaining to the involuntary commitment to an OPWDD facility, which is the subject of the request for relief;

(ii) true and certified copies of medical/clinical records from all of the applicant's current treatment and service providers, if the applicant is receiving treatment or services;

(iv) notarized letters of reference from current and past employers, family members or personal friends, which may include affidavits from character witnesses or the applicant, or other character evidence;

(v) any further information pertinent to the determination specifically requested by OPWDD. Such documents requested by OPWDD shall be certified copies of original documents.

(4) The applicant must provide a psychiatric evaluation performed no earlier than 90 calendar days from the date the request for relief was submitted to OPWDD, conducted by a qualified psychiatrist as defined in section 9.01 of the Mental Hygiene Law. The evaluation must include an opinion, and a basis for that opinion, as to whether or not the applicant's record and reputation are such that the applicant will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief to allow for firearms possession would be contrary to the public interest.

(5) The applicant must also provide an evaluation by a licensed psychologist which includes current IQ and adaptive behavior assessment.

(6) OPWDD reserves the right to request that the applicant undergo a clinical evaluation and risk assessment as determined by the commissioner or his/her designee(s). The evaluation must be performed 45 calendar days from the date OPWDD requests the evaluation, unless OPWDD allows an extension of time.

(7) The request for relief must include a valid authorization form permitting OPWDD to obtain and/or review health and other information from any health, mental health, alcohol/substance abuse providers, or providers of services for persons with developmental disabilities with respect to care and services provided prior to the date of the application, for the purposes of reviewing the application for relief. Such authorization must comply with applicable Federal or State laws governing the privacy of health information, including but not limited to, as relevant, 45 CFR parts 160 and 164, 42 CFR part 2, Public Health Law, section 17 and article 27-F, and Mental Hygiene Law, section 33.13.

(8) It is the responsibility of the applicant to ensure that all required information accompanies the request for relief at the time it is submitted to OPWDD. Unless specifically requested by OPWDD, information provided after receipt by OPWDD of the initial request for relief will not be considered. Information specifically requested by OPWDD must be received by OPWDD within 60 days of the date requested in order for it to be considered. Failure to meet this time frame will result in a denial of the certificate of relief.

(b) Scope of review.

(1) The commissioner or his/her designee(s) shall perform an administrative review of the request for relief, which shall include a review of all information submitted by the applicant in accordance with subdivision (a) of this section. The person(s) who conducts the review will not be the individual(s) who gathered the information for the administrative request for relief.

(2) Failure of the applicant to provide required or requested information may be the sole basis for denial of the certificate of relief.

(3) The scope of the review shall be to determine whether the applicant will not be likely to act in a manner dangerous to public safety and granting the relief will not be contrary to the public interest.

(1) After review of the application in accordance with subdivision (b) of this section, the commissioner or his/her designee(s) shall prepare a written determination, which shall include:

(i) a summary of the information utilized in reaching the decision;

(ii) a summary of the applicant's criminal history (if any);

(iii) a summary of the psychiatric evaluation prepared to support the request for relief;

(iv) a summary of the applicant's mental health and intellectual/developmental disabilities history;

(v) a summary of the circumstances surrounding the firearms disability imposed by 18 USC section 922(d)(4) and (g)(4);

(vii) a determination as to whether or not the relief is granted.

(2) OPWDD shall provide a copy of the written determination to the applicant without undue delay. In addition to a copy of the written determination:

(i) if the relief is granted:

(b) OPWDD must notify NICS that the certificate of relief has been granted; or

(ii) if the relief is denied:

(a) the applicant must be notified of the right to have the decision reviewed in accordance with applicable State law; and

(b) OPWDD must further advise that the applicant cannot apply again for a request for relief until a year after the date of the written determination to deny the relief requested.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 643.4 Records

OPWDD, on being made aware that the basis under which a record was made available by OPWDD to NICS does not apply or no longer applies, shall, as soon as practicable:

(a) update, correct, modify or remove the record from any database that the Federal or State government maintains and makes available to NICS, consistent with the rules pertaining to that database; and

(b) notify the United States Attorney General that such basis no longer applies so that the record system in which the record is maintained is kept up to date.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 671 HCBS Waiver Community Residential Habilitation Services for Persons with Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 671.1 Background and intent

(a) This Part establishes standards for the delivery of community residential habilitation services (see section 671.5 of this Part) to persons (see glossary) with developmental disabilities (see glossary) who require such services in order to assist the person to reach his/her best possible functional level and/or to prevent the loss of skills or capacity due to aging or the presence of a degenerative condition.

(b) The expressed treatment goal of community residential habilitation services shall be to assist the person to reach his/her best functional level. The overall goal of all community residential habilitation services shall be to promote and encourage independence, integration, individualization and productivity (see section 671.6[a][5][ii] of this Part).

(c) Community residential habilitation services, as governed by this Part shall be delivered by providers (see glossary) authorized by OPWDD to provide such services in supervised and supportive community residences. The requirements of this Part constitute the program planning and service delivery standards applicable in this facility class.

(d) Allowable (see glossary) services by an authorized provider (see glossary) are those appropriately supervised (see glossary) activities interventions and therapies which are designed and implemented for the maximum reduction of functional and/or behavioral deficits associated with the person's developmental disability and/or a concurrent medical condition.

(e) This Part establishes standards for reimbursement and financial reporting under the medical assistance program for home and community-based services waiver community residential habilitation services delivered in community residences by providers of services (see section 1.03[5] of the New York State Mental Hygiene Law) to eligible persons with developmental disabilities. The standards of reimbursement in section 671.7 of this Part shall be in effect as long as continued Federal financial participation is available. Absent Federal financial participation, other sources of reimbursement will be utilized.

(f) This Part establishes standards for service planning and review for the delivery of community residential habilitation services reimbursed under the medical assistance program or other sources, and substitutes and supersedes the existing program planning and associated review regulatory requirements in certified community residences.

(g) As used herein, the terms people and person(s) shall be understood to refer to those who are eligible to receive, and are receiving services from an authorized provider.

(h) The OPWDD certification process described below is superseded by requirements in Part 619 of this Title, Certification of Facilities and Home and Community Based Services (HCBS), effective on the effective date of these regulations.

This Part (with the exception of sections 671.1, 671.2, 671.3, 671.7 and 671.99 of this Part) is organized in a format consisting of principles of compliance and standards of certification....

(i) Nothing herein shall be interpreted to preclude a person from being eligible for and, receiving the HCBS waiver services set forth at Subpart 635-10 in section 635-10.4(b)(2) and (c)-(f) of this Title in different authorized facilities, or from more than one provider of services as long as the providers coordinate the development of the person's plan(s) of services and take steps to ensure that there is no duplication of payment for the same service delivered at the same time by the same staff. The latter shall not be interpreted to mean that the person may not receive comparable services targeted toward achievement of similar outcomes (see glossary) in different authorized facility classes or locations, or using similar activities, interventions, or therapies.

(j) Community residential habilitation services to eligible persons shall be delivered in the environment(s) most conducive to promoting effective training and skill generalization. Thus, while such services are authorized for delivery by a specifically designated certified authorized provider, it is presumed and encouraged that, where feasible and appropriate, the activities, interventions and therapies associated with the services, shall make appropriate use of community environments which allow for interaction with those without disabilities.

(k) Every person approved for receipt of community residential habilitation services shall be assisted by a specific case manager chosen by him or herself or his/her advocate (see glossary), regardless of the type or amount of community residential habilitation service(s) received.

(1) The chosen case manager is responsible for assisting the person and/or his/her advocate, as needed, in creating and sustaining an individualized service environment by developing, implementing, reviewing and revising the person's plan of service. To the extent possible, providers of case management services shall attempt to ensure the avoidance of a conflict of interest between the provision of case management services and other services in which the person is participating or receiving.

(2) Appropriate case management services activities include the following areas as defined further in 10 NYCRR 505.16:

(i) development of a comprehensive case management plan which shall incorporate the provisions of the person's community residential habilitation services' plan of services developed pursuant to this Part;

(ii) intake and screening;

(iii) assessment and reassessment;

(iv) coordination of the case management plan;

(v) implementation of the case management plan;

(vi) crisis intervention;

(vii) monitoring and follow-up; and

(viii) counseling for exit planning.

(l) The receipt of community residential habilitation services shall not preclude a person from receiving generic or OPWDD authorized personal care services, or comprehensive Medicaid case management services, or Part 679 of this Title certified clinic treatment services at the facility/setting where the community residential habilitation services are delivered.

(m) Nothing herein shall be interpreted as precluding the applicability of Parts 604, 624, 633, 635 and 636 of this Title to each setting as specified pursuant to each Part. In the event that there is a conflict between the requirements contained herein and any other applicable law or regulation, OPWDD will resolve issues relative to the conflicting requirements.

(n) OPWDD expects ongoing compliance with both principles of compliance and standards of certification included in this Part. Therefore, such compliance is the responsibility of the agency and is necessary for continued participation as a certified facility or funding as an approved program or service.

History

Amended by New York State Register September 24, 2014/Volume XXXVI, Issue 38, eff. 9/24/2014.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 671.2 Applicability

(a) This Part contains requirements and specifications relative to the provision of the home and community-based services (HCBS) waiver community residential habilitation services delivered in certified community residences as authorized by the Secretary of the United States Department of Health and Human Services pursuant to section 1915(c) of the Social Security Act (see glossary).

(b) All providers of home and community-based waiver services shall be authorized pursuant to a Medicaid provider agreement issued and approved by the New York State Department of Social Services specific to the type of services being offered.

(c) In addition, all authorized HCBS waiver community residential habilitation providers shall comply with the requirements of Parts 624 and 633 of this Title.

(d) In order to receive authorization from OPWDD to provide community residential habilitation services, a provider shall:

(1) hold a valid operating certificate from OPWDD as a supervised or supportive community residence; and

(2) be issued a specific authorized provider medical assistance reimbursement number.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 671.3 Statutory authority

(a) Sections 13.01 and 13.07 of the Mental Hygiene Law authorize the OPWDD to develop an effective, integrated, comprehensive system for the delivery of services to people with developmental disabilities and to create financing procedures and mechanisms to support such a system of services.

(b) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under his or her jurisdiction.

(c) Article 16 sets forth provisions enabling the commissioner of the OPWDD to regulate and assure the consistent high quality of services provided within the State to its citizens with developmental disabilities. The commissioner may adopt and promulgate any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by this article.

(d) Section 16.11 of the Mental Hygiene Law authorizes the commissioner or an authorized representative to conduct investigations and inspections, and permit review of the facility and all its books and records.

(e) Section 16.13 of the Mental Hygiene Law requires holders of operating certificates issued by the commissioner to cooperate during inspections by permitting review of the facility and all its books and records.

(f) Section 43.02 (a) of the Mental Hygiene Law requires that payment made under the Medicaid program for services provided by any facility licensed or operated by OPWDD be at levels of reimbursement certified by the commissioner of OPWDD and approved by the Director of the Division of the Budget.

(g) Section 43.02 (b) of the Mental Hygiene Law gives the commissioner the authority to request operators of facilities certified by the Office for People With Developmental Disabilities to submit financial, statistical and program information as the commissioner may determine to be necessary.

(h) Section 43.02 (c) of the Mental Hygiene Law requires the commissioner of OPWDD to adopt rules and regulations to effectuate the provisions of section 43.02.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 671.5 Allowable services

(a) Principles of compliance.

(1) Allowable community residential habilitation services by an authorized provider (see glossary) are those appropriately supervised (see glossary) activities, interventions and therapies necessary for the maximum reduction of functional and/or behavioral deficits associated with the person's developmental disability.

(2) Services shall be designed and implemented to train, or develop skills, capabilities or knowledge appropriate to enhance or improve a person's independence, lessen dependence or minimize loss of functioning or adaptive capacity.

(3) The expressed treatment goal of community residential habilitation services shall be to promote and encourage outcomes related to independence, integration, individualization, and productivity.

(4) Categories of allowable services.

(i) Health skills training services. Activities, interventions and therapies designed to promote independence in personal health care by increasing the person's awareness of his or her physical health status and the resources required to maintain physical health, including, but not limited to, regular medical and dental appointments, basic first aid skills and basic knowledge of proper nutritional habits. Also included is training on topics such as disease prevention.

(ii) Self-administration of medication training services. Activities, interventions and/or therapies designed to develop skills and enhance capacity (or limit regression) in the functional areas including, but not limited to, understanding the role and effect of medication, the importance of adherence to any medication regimen, and the performance of the actual behavior(s) necessary to actually take medication in accordance with a prescribed regimen. While not including the act of prescribing, such training does include activities related to reviewing the need for, and appropriateness of the person's medication regimen with his/her physician or health care provider.

(iii) Socialization skills training services. Activities, interventions and therapies which are designed to assist the person in developing skills and enhancing capacities that diminish tendencies toward isolation and withdrawal by assisting the person in the acquisition or development of social and interpersonal skills. "Socialization" is an activity meant to improve or maintain a person's capacity for social involvement by providing opportunities for the application of social skills. This occurs through resident and staff interaction in the program and through exposure with staff to opportunities in the community. Modalities used in socialization include individual and group counseling and behavior intervention.

(iv) Communication skills training services. Activities, interventions and therapies designed to develop skills or enhance capacity (or limit regression) in the functional areas including; but not limited to expressive language; receptive language; use of adaptive/specialized communication devices; and listening skills.

(v) Functional skills training services. Activities, interventions and therapies which are designed to develop skills and enhance capacities (or limit regression) to engage in the primary activities of daily life. Services are provided by addressing areas of functioning such as: dressing, personal hygiene and grooming, selection and/or preparation of food, cleaning and washing of clothes, maintenance of the personal environment, budgeting and money management, education in general health, family planning and use of community resources such as public transportation. Training is intended to increase those competencies needed by the individual to live in his or her chosen environment.

(vi) Assertiveness/self-advocacy skills training services. Activities, interventions, and therapies which promote the person's ability to assess and utilize his or her strengths and capacity to make life status changes and to increase self-awareness about his or her values and preferences. Training also focuses on increasing a person's ability to respond to medical, safety and other personal problems. Activities are also intended to improve communication skills and facilitate appropriate interpersonal behavior.

(vii) Behavior skills training services. Activities, interventions and therapies designed to develop skills and enhance capacities (or limit regression) in the functional areas including; but not limited to, interpersonal behavior; minimizing/eliminating self-injurious behavior; minimizing/eliminating aggressive behavior; and conducting oneself appropriately in various community settings.

(viii) Community integration and resource utilization skills training services. Activities, interventions and therapies which are designed to help the person identify skills and community supports necessary for specific environments, to assess their skills and strengths in relationship to meeting environmental demands, to access resources available to help the person, and to develop a natural support system by assessing social, educational and recreational opportunities and learning how to make choices.

(ix) Motor skills training services. Activities, interventions and therapies designed to develop a person's skills or enhance capacity (or limit regression) in the functional areas including, but not limited to, mobility in walking/sitting/standing; fine and gross motor activities; and use of adaptive mobility equipment.

(x) Skills development training services. Activities, interventions and therapies which enhance utilization of the skills necessary to undertake employment or pursue education opportunities. This may include developing and enhancing skills related to securing appropriate clothing, scheduling, work-related symptom management, and work readiness training.

(5) Community residential habilitation services. Effective July 1, 1996, the provider of community residential habilitation services in a supervised community residence, shall be responsible for any necessary transportation to and from physician, dentist, and other clinical services, and any other transportation appropriate to the person's participation in community-based out-of-residence activities planned for or sponsored by the residence. Nothing herein shall be interpreted as precluding the accessing of separate Medicaid claiming for emergency/nonemergency ambulance services (as defined in 18 NYCRR 505.10) necessitated by the person's medical condition.

(6) The provider of community residential habilitation services in a supervised community residence is responsible for the cost of:

(i) services that are necessary to meet the needs of individuals while in residence;

(ii) services that, prior to August 1, 2004, could have been met by home health aide or personal care services separately billed to Medicaid;

(iii) services that, prior to October 1, 2015, could have been met by home health aide or personal care services separately billed to Medicaid, with those services provided in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site; and

(iv) services specified in paragraph (7) of this subdivision that, prior to October 1, 2015, may have been separately billed to Medicaid.

(7) Effective October 1, 2015, residential habilitation services in a supervised CR include the following clinical services delivered to an individual that are directly related to the individual's residential habilitation plan:

(i) nutrition services that consist of meal planning and monitoring, assessment of dietary needs and weight changes, development of specialized diets, diet education, and food safety and sanitation training;

(ii) behavioral intervention and support services delivered by a licensed psychologist, licensed clinical social worker, or behavioral intervention specialist that consist of behavioral assessment and intervention planning, delivery and review or monitoring of behavioral interventions, and behavioral support services provided pursuant to section 633.16 of this Title; and

(iii) nursing services that consist of:

(a) training and supervision of direct support staff who perform health-related and delegated nursing tasks that include, but are not limited to, observation for illness and injury, medication administration, tube feeding, and colostomy care;

(b) development and monitoring of written plans of nursing services that identify interventions direct support staff carry out to address individuals' health care needs;

(c) availability of nursing supervision, by a registered nurse, on site or by telephone, at all times to respond to direct support staff in order to address individuals' ongoing and immediate health care needs;

(d) coordination of individuals' health care services, including, but not limited to, arranging for needed medical appointments and diagnostic testing, interfacing on behalf of individuals with community-based healthcare providers, and ensuring that treatments are carried out in accordance with physicians' orders; and

(e) provision of direct nursing care that cannot be delegated to direct support staff and that is available within the staffing plan at the residence and/or is not available through other sources.

(8) The provider of community residential habilitation services in a supportive CR is responsible for the cost of services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid; either

(i) at the residence at any time; or

(ii) in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site.

(b) Standards of certification.

(1) OPWDD shall verify that the facility is claiming for the provision of services consistent with the contents of the persons' plan(s) of services.

(2) OPWDD shall verify that staff members are appropriately trained and supervised to deliver the services for which they are responsible.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 671.6 Service planning and service delivery

(a) Principles of compliance.

(1) Community residential habilitation service planning shall be initiated based on documentation that services are necessary to meet the person's needs, and a determination that the person meets the requirements for eligibility at section 671.4(a)(2) of this Part.

(2) The parties to be involved in the development of a plan of services to provide services shall include the person, an advocate (see glossary), the assigned qualified intellectual disabilities professional (QIDP; see glossary), the person's case manager, the staff member(s) principally responsible for the delivery of the person's plan of services, with an invitation to the person's parent or guardian as long as the person does not object to said parties' participation.

(3) There shall be a designated qualified intellectual disabilities professional (QIDP; see glossary) responsible for approving the plan of services of every person receiving services. The QMPR shall be identified by name in each person's plan of services.

(4) The QIDP shall be responsible for:

(i) participating in the development of the person's plan of services;

(ii) signing the plan of services;

(iii) participating in the semi-annual review of each person's plan of services;

(iv) completing the annual summary assessment of the person's status relative to his/her receipt of community residential habilitation services over the previous 11 months; and

(v) periodically ensuring that the plan of services is being appropriately documented in accordance with the requirements of this Part.

(5) Each provider authorized to deliver community residential habilitation services shall conduct a program planning process in accordance with the requirements set forth in this Part and in accordance with its own policies and/or procedures (see glossary). The program planning process shall, at least, include:

(i) a meeting of, and/or sharing of appropriate information from, the appropriate parties;

(ii) consideration of appropriate clinical and developmental assessments;

(iii) consideration of the person's input relative to choices about how his/her needs and interests are to be met; and

(iv) development of a written plan of services that includes components set forth at paragraph (6) of this subdivision.

(6) A community residential habilitation plan of services shall be written, developed within 30 days of initiation of such services and shall set forth a mutually agreed upon course of action which shall include at least the following components:

(i) Identification of the specific community residential habilitation services to be delivered, any associated activities, interventions and/or therapies, and the use of therapeutic leave to further enhance service outcomes.

(ii) The outcomes to be achieved through the provision of each of the community residential habilitation services to be delivered. Such outcomes shall include consideration of promoting achievement of the following goals consistent with the services being provided:

(a) Independencethe person has opportunities to develop capacities that lessen his/her dependence.

(b) Integrationthe person has opportunities to engage in experiences and activities with those who are not disabled.

(c) Individualizationthe person is given meaningful choices, respected, addressed and provided services in terms of his/her unique and valued individuality.

(d) Productivitythe person is provided opportunities to make an increasingly meaningful contribution to his/her living and community environment.

(iii) Specification of generally when the specified outcomes will be achieved.

(iv) Efforts to coordinate the provision of services with other providers of such services and/or other supports being received.

(7) The plan of services shall be delivered by appropriately trained and supervised staff of the facility.

(8) Progress notes shall be recorded, at least monthly, by the staff member(s) having a substantive responsibility for delivering or monitoring delivery of the plan of services. Such notes shall:

(i) indicate the activities and interventions provided;

(ii) indicate "when appropriate and as indicated" in the individual's plan of services, review and assessment by the QIDP;

(iii) identify any significant events or noteworthy observations relevant to the person's receipt of the service(s); and

(iv) set forth any recommendations for changes in any aspect of the plan of services and actions to be taken to effect such change.

(9) The plan of services shall be reviewed as needed, but at least semi-annually, with the initial review occurring within a semi-annually period from the date of service initiation. The review shall include participation of the person, his/her advocate, his/her case manager, the designated QIDP, the staff member(s) primarily responsible for actual service delivery, and an invitation to the person's parent or guardian (unless the person objects) to participate. The semi-annual review of the plan of services shall include:

(i) an evaluation of the person's progress in achieving the specified outcomes;

(ii) an evaluation of the person's satisfaction with the activities, interventions and/or therapies being provided; and

(iii) recommendations for revision of outcomes, or selection of different outcomes and/or activities, interventions or therapies and specification of the appropriate timeframes for achievement of the revised/changed outcomes.

(10) The plan of services shall be maintained with a concern for confidentiality and the protection of each person's right to privacy. The preceding notwithstanding, the person's plan of services shall be accessible, at the service delivery setting, or readily available to staff members responsible for its implementation.

(11) In settings where services are authorized, it is expected that service(s) will be available daily, but delivered in accordance with the individualized plan of services, throughout a month. Persons receiving services are permitted and encouraged to participate in periodic away-from-service-setting visits with family and friends and overnight recreational opportunities.

(12) Services shall be delivered by appropriately trained and supervised staff members who, in accordance with their assigned responsibilities, are familiar with each person's needs and the activities, interventions, and/or therapies associated with the rehabilitative service(s) being provided.

(b) Standards of certification.

(1) OPWDD shall verify that the person directly participated in the program planning process for the development of the community residential habilitation service(s) identified in his/her plan of services.

(2) OPWDD shall verify that each person receiving community residential habilitation services has been assigned a qualified mental retardation professional.

(3) OPWDD shall verify in both the service planning and service delivery aspects, that the provider of community residential habilitation services has respected the person's cultural and language needs and has attempted to ensure that the person's primary language or means of communication has been used to facilitate learning and understanding.

(4) OPWDD shall verify that the provider has incorporated in both the service planning and service delivery aspects, outcomes that include attention to the concepts of individualization, integration, independence and productivity.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Part 676 Diagnostic and Research Clinics

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.1 Introduction and intent

(a) This Part establishes standards for the certification and operation of a diagnostic and research clinic. The diagnostic and research clinic program has been conceived as a highly specialized tertiary care facility. The diagnostic and research clinic shall either be part of a larger research institute or part of an article 28 certified primary or secondary health care facility. The clinic shall be established to deliver specialized clinical diagnostic assessments, laboratory services, treatment planning, and if needed, to facilitate the evaluation procedures, short term residential services. Only individuals referred to the clinic with apparent disabilities will be admitted for its services. Primarily, individuals will be admitted whose disabilities have been difficult to diagnose, and who are suspected of having developmental disabilities and who also require treatment planning so as to match their particular needs with appropriate interventions and services. The diagnostic and research clinic, based on assessments spanning several disciplines, shall be responsible to prepare a written diagnostic and evaluation summary and an interdisciplinary recommended treatment plan for each person admitted. This plan shall be used to explain to parents, advocates, correspondents, referring agency, etc., the cause and nature of the person's disabilities, and to recommend the type and intensity of treatment best suited to care for the person. The clinic shall also provide follow-up and corollary referrals, if needed, for each person admitted. The diagnostic and research clinic, if affiliated with an overall research facility will be able to utilize its sophisticated technical expertise and equipment for diagnosis and evaluation. In addition, the clinic may provide the research institute with data and material for approved research projects and thereby to expand and enhance the extant knowledge of the causes, prevention and treatment of developmental disabilities. The diagnostic and research clinic shall only be permitted to release information for research if such information has been obtained in the process of delivering clinical services specified for an individual and if appropriate consents and review procedures for research with human subjects mandated by Federal and State laws, regulations and guidelines have been followed.

(b) A diagnostic and research clinic as defined and operated under this Part, shall be established as an organizational entity providing persons with developmental disabilities, or persons suspected of having developmental disabilities, with comprehensive behavioral and medically related assessment and diagnostic services.

(1) identify the existence, nature and extent of a person's mental and physical disabilities and/or suspected disabilities, and his or her chronic and/or acute medical needs;

(2) conduct definitive laboratory evaluations and specialized procedures for those individuals whose disabilities have been difficult to diagnose, evaluate and treat;

(3) assess an individual if necessary in each functional discipline and evaluate the areas of disability, the levels of disability and specify in writing the person's diagnosis or diagnoses in each area in which the person has been assessed; and, develop in a recommended treatment plan the methods, objectives, goals, services, treatments, etc. that could be used to ameliorate, habilitate, or rehabilitate the individual to his or her best possible functional level;

(4) prevent the outbreak of illness, disease, or other disabilities or prevent the progression of such conditions;

(5) prolong life and limb and the quality of life for the natural duration of the life of a person with a disability; and assess the etiology of the symptomatology of a person with a disability after death if requested by the family, and/or required by court or by legal mandate;

(6) consult with family for the purposes of intake, referral, genetic counseling, case management, and advocacy;

(7) conduct approved and appropriate experimental diagnosis and treatment procedures using specialized clinical laboratories and other resources if appropriate consents are granted; and

(8) educate, train, and guide other professional clinicians, and scientists and/or those studying to be professional clinicians and/or scientists to participate in clinical investigations concerning the causes, treatment and prevention of developmental disabilities.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.2 Statutory authority

(a) Section 13.17 (b) of the Mental Hygiene Law designates the New York State Institute for Basic Research in Mental Retardation as a State facility established to conduct medical research and other scientific investigations directed toward furthering knowledge of the etiology, diagnosis, treatment and prevention of developmental disabilities. This same section names the schools operated by the Office for People With Developmental Disabilities for the care and treatment of individuals with developmental disabilities.

(b) Sections 13.01 and 13.07 of the Mental Hygiene Law authorize the Office for People With Developmental Disabilities to pursue expansion of services and develop new methods of service delivery to serve the full range of needs of individuals with developmental disabilities.

(c) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under his or her jurisdiction.

(d) Section 29.01 of the Mental Hygiene Law empowers the commissioner to make regulations governing admissions of individuals with developmental disabilities to hospitals and the identification processing of patients. The commissioner is also authorized to prescribe and furnish forms for use in procedures for admission with admission dependent on the use of such forms.

(e) Section 31.02 of the Mental Hygiene Law requires an operating certificate issued by the commissioner for operation of any part of a general hospital for the purpose of providing residential or nonresidential services for persons with developmental disabilities. This section also prohibits any provider of service from engaging in the operation of a residential facility for the care, custody and treatment of persons with developmental disabilities without an operating certificate issued by the commissioner.

(f) Section 31.04 of the Mental Hygiene Law authorizes the commissioner to adopt regulations establishing classes of operating certificates. Furthermore, this section authorizes the commissioner to adopt regulations establishing procedures for the issuance, amendment and renewal of operating certificates. This section also authorizes the commissioner to adopt regulations setting standards of quality and adequacy for facilities, equipment, personnel, records, services and programs pursuant to an operating certificate.

(g) Section 31.05 of the Mental Hygiene Law provides that no operating certificate shall be issued by the commissioner unless the premises, equipment, personnel, records and program are found to be adequate and appropriate to provide the services for which an operating certificate is sought; and that such services will be provided in compliance with applicable laws and regulations.

(h) Sections 13.07 and 31.09 of the Mental Hygiene Law authorize the commissioner or an authorized representative to conduct investigations and inspections and permit review of the facility and all its books and records.

(i) Section 31.11 of the Mental Hygiene Law requires holders of operating certificates issued by the commissioner to cooperate during such inspections by permitting review of the facility and all its books and records.

(j) Section 31.15 of the Mental Hygiene Law authorizes the commissioner to revoke, suspend, or limit an operating certificate upon a finding that the certificate holder has failed to comply with terms of the operating certificate or with the provisions of any applicable statute, rule or regulation.

(k) Section 363-a.2 of the Social Services Law authorizes the Department of Social Services to implement Medicaid funded programs within the State of New York.

(l) Sections 364.3 and 364-a.1 of the Social Services Law grant OPWDD the responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction and that it will do so in accordance with cooperative arrangements with the Department of Social Services and other State agencies.

(m) Sections 571, 572, 573, 574 and 575 of the Public Health Law establish requirements governing the direction and operation of clinical laboratories. These sections apply to all laboratories within the State except, according to section 579, laboratories operated by the State or the Federal government.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.3 Certification

(a) Each diagnostic and research clinic shall have a current operating certificate issued by OPWDD.

(b) A diagnostic and research clinic shall either be a distinct part of a general hospital accredited by the Joint Commission of Accreditation of Hospitals (JCAH) and certified under article 28 of the New York State Public Health Law or shall be part of an established research institute operated by OPWDD.

(c) A diagnostic and research clinic shall only be operated by New York State Office for People With Developmental Disabilities unless otherwise specified by the commissioner.

(d) Each diagnostic and research clinic certified under this Part shall operate a clinical laboratory as part of its facility, for the examination of microbiological, serological, chemical, hematological, biophysical, cytological or pathological materials derived from the human body, for the purpose of obtaining information for the diagnosis, evaluation, prevention or treatment of a disease and/or disability. Such clinics shall be required to have a valid clinic laboratory permit issued in accordance with section 574 of the New York State Public Health Law to perform such laboratory procedures. This provision shall be recommended but not mandated for clinical laboratories operated by diagnostic and research clinics that are themselves part of an established research institute operated by OPWDD.

(e) A certified diagnostic and research clinic which is part of an OPWDD operated research institute, but is not part of an article 28 certified hospital, (see subdivision [b] of this section) shall have on its premises an intermediate care facility for persons with developmental disabilities certified by OPWDD to provide residential care for those persons with developmental disabilities who are required to stay at the clinic for more than one day for diagnosis, evaluation, and, if appropriate, for approved and/or approvable experimental treatment. Persons with developmental disabilities staying in the clinic's ICF/DD residence shall be cared for according to the standards specified in this Part and in Part 681 of this Chapter.

(f) An initial application to certify the operation of a diagnostic and research clinic or an application for the renewal of an existing operating certificate shall be submitted to the commissioner of OPWDD in the format specified by OPWDD and be subject to its review and approval procedures.

(g) Each operating certificate shall be valid for two years after the day of its issuance, and shall be issued to a diagnostic and research clinic which, after appropriate inspections, has been deemed to comply with the requirements stated herein and other applicable State and Federal requirements.

(h) Diagnostic and research clinics shall only be certified to bill for services specified in this Part. Such clinics shall be required to receive certification, pursuant to Part 679 of this Chapter, or the certification of another appropriate program, in the event that the clinic elects to provide treatment and active programming to individuals with developmental disabilities in addition to the provision of the clinical services stated herein or the services required by its ICF/DD.

(i) The certificate issued under this Part, and all other certificates required by this Part or other State and Federal standards, shall be displayed in a conspicuous place in the clinic so that it can be seen by anyone wishing to see it.

(j) All operating certificates shall remain the property of OPWDD and shall be returned to OPWDD upon request.

(k) The operating certificate may be suspended, revoked or limited as follows:

(1) The commissioner may revoke, suspend or limit the operating certificate upon his finding that a diagnostic and research clinic has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation. The director of the diagnostic and research clinic shall be given notice that such an action is pending and be given an opportunity to be heard prior to such action.

(2) Pending a determination pursuant to paragraph (1) of this subdivision, the commissioner may, upon written notice to the director of the diagnostic and research clinic, suspend the certificate upon his or her finding that the continued operation of the diagnostic and research clinic presents an immediate danger to the health and welfare of any of the individuals with developmental disabilities being served by the clinic or any of its related facilities such as the clinical laboratory and/or the ICF/DD.

(l) The certified diagnostic and research clinic shall obtain prior approval from OPWDD to:

(1) change the address or physical location of the diagnostic and research clinic or to utilize additional physical locations or premises or parts of premises;

(2) initiate any changes in the overall provision of services to the individuals with developmental disabilities served by the clinic;

(3) change the powers or purposes set forth in any certificate of incorporation or partnership agreement or New York State statute pertaining to its designation, certification, operation or administration; or

(4) become affiliated with another institution(s).

(m) The certified diagnostic and research clinic shall obtain the informed consent of the person with a disability if possible, and/or the correspondent of the person with a disability, before conducting diagnostic or evaluation procedures or experimental diagnostic, evaluation and treatment procedures for an individual.

(n) The certified diagnostic and research clinic shall notify the commissioner of OPWDD within 90 days of any intention to voluntarily terminate its operation or any part of its operation. This notice of intention shall include a statement of the actions that will be taken by the clinic's administrative and clinical staff to ensure:

(1) appropriate continued service for individuals with developmental disabilities being served by the diagnostic and research clinic;

(2) the confidentiality of records; and

(3) that outstanding obligations, debts and accounts receivable are settled according to the requirements established in particular agreements and contracts.

(o) Nothing in this Part shall prevent the diagnostic and research clinic from establishing provider agreements with certified generic or specialized community providers or from affiliating itself with accredited universities or teaching hospitals, or with departments in such universities or teaching hospitals; or to prevent the free exchange and communication between researchers and clinicians in the health and/or human sciences.

(p) Operating certificates issued under this Part are not transferable.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.4 Organization and administration

(a) Each diagnostic and research clinic shall have a governing body.

(1) In the case of a diagnostic and research clinic operated by OPWDD as part of an established OPWDD research institute, OPWDD shall function as governing body.

(2) The governing body for such clinics not operated by OPWDD may be an individual or a group. For clinics operated as part of an OPWDD institute, OPWDD may appoint a director of the overall institute who shall act as OPWDD's designee and who is responsible to OPWDD.

(3) The governing body or the OPWDD-appointed director shall be responsible for the diagnostic and research clinic's general direction, operations policies, and shall:

(i) be legally responsible for the clinic's overall operation and management;

(ii) ensure that the clinic has adequate and modern administrative support to efficiently meet the needs of the individuals with developmental disabilities served by its facilities; administrative support includes clinical, communication, financial, housekeeping, laundry, personnel, physical plant safety and security, supplies, and purchasing services;

(iii) ensure that the facility has a plan for a management audit, and that such audit is conducted at least annually; this audit shall determine if the clinic complies with all applicable State laws, regulations and policies;

(iv) ensure that the health, safety, welfare, well-being and civil, human and legal rights of individuals with developmental disabilities served by the diagnostic and research clinic are protected, upheld and fostered;

(v) ensure that agreements with other providers and with community groups have been developed to ensure that individuals with developmental disabilities receive the specialized assessments and clinical laboratory tests required to perform comprehensive diagnosis and evaluations; and assist such persons to receive the programs, treatment and care appropriate to their disabilities; and

(vi) maintain minutes of its official meetings and the decisions made in relation to the operation of the diagnostic and research clinic, and maintain a record of follow-up actions accomplished based on such decisions.

(b) Each diagnostic and research clinic shall have a clinical director who is appointed by the governing body or its designee.

(1) The clinical director shall be responsible for the continuous day-to-day operation and control of the clinic.

(2) The clinical director shall be responsible for the clinical services and administrative activities of the clinic, including all outpatient diagnostic and assessment services and residential services. The clinical director shall also be responsible for ensuring that the services provided to individuals with developmental disabilities at the clinic comply with the intent and requirements of this Part and the intent and requirements of other appropriate laws and regulations.

(3) The clinical director shall either be certified as a clinical laboratory director, in accordance with 10 NYCRR Part 19, and thereby be responsible for the operation of the clinical laboratory, or someone else certified as a clinical laboratory director shall be designated to oversee the operation of the clinical laboratory.

(4) The clinical director of the diagnostic and research clinic shall:

(i) designate an individual to be responsible for the administrative direction of the clinic at all times when the clinical director is absent;

(ii) maintain a current table of organization which shows the diagnostic and research clinic's major programs and services, the clinic's relationship to other divisions operated by the overall facility, the administrative personnel in charge of the programs and services and the lines of authority, responsibility and communication. This table of organization shall identify the person(s) and/or divisions providing services to the individuals with developmental disabilities, including staff shared between divisions and/or the relation between the clinic and other providers of service, if applicable;

(iii) ensure, in conjunction with the overall facility director, governing body or with other professionals in the field, whichever is appropriate, that standing committees are established to address issues that relate to:

(a) aversive conditioning;

(b) human rights;

(c) incident review (including but not limited to reviewing accidents, death, abuse, mistreatment, neglect, adverse drug reactions, medication errors and the use of restraints);

(d) infection control;

(e) research and experimentation review and appropriate informed consents;

(f) professional advisory board on clinical/research coordination;

(g) admission to outpatient, laboratory and residential services; and

(h) utilization review of admissions and subsequent and continued treatment review for outpatient, clinical laboratory and/or residential services;

(iv) establish a manual of policies and procedures concerning the operation and administration of the diagnostic and research clinic and the well-being of the individuals served by it, and ensure that such policies and procedures are followed in topics not limited to the following:

(a) the clinic's role in the State's programs for individuals with developmental disabilities;

(b) the clinic's philosophy, goals and service objectives;

(d) type and scope of services provided by clinic;

(e) structure, functions and characteristics of services provided to individuals with developmental disabilities;

(f) description of the clinic's relationships to individuals with developmental disabilities, families, community, professional committees and organizations, universities and other clinics and programs for individuals with developmental disabilities;

(g) composition and activities of standing committees;

(h) responsibilities of facility director;

(i) responsibilities and qualifications of clinical director;

(j) responsibilities and qualifications of clinical laboratory director;

(k) responsibilities and qualifications of clinical and laboratory staff;

(l) admission and rejection criteria and prescription for follow-up services;

(m) criteria for ordering specialized services;

(n) interdisciplinary team process and the development of a recommended treatment plan;

(o) admission criteria for individuals authorized to receive additional medical and/or specialized clinical laboratory services during the course of an evaluation (see section 676.5[b] of this Part);

(p) list of tests performed within each specialized clinical laboratory area; and

(q) clinic's staffing pattern.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.5 Admission criteria

(a) Referral and admission.

(1) All persons seeking admission to the diagnostic and research clinic, for any of the services specified in section 676.6 of this Part, shall first be referred to the clinic by at least one of the following:

(i) another diagnostic and evaluation clinic;

(ii) a health care professional;

(iii) a QIDP;

(iv) a case manager;

(v) a recognized advocate for the persons with developmental disabilities;

(vi) a committee on persons with a handicap;

(vii) a school guidance counselor;

(viii) an outpatient-inpatient hospital; and

(ix) a State- or voluntarily operated program or agency.

(2) An admission committee, composed of professional staff representative of clinical disciplines in which diagnosis and evaluation services are provided at the clinic, shall be established to screen each individual referred to the clinic for his or her need to receive the type and level of diagnostic and evaluation services offered at such a clinic.

(3) The admission committee shall be able to admit or reject individuals referred to the diagnostic and research clinic. The committee may also decide that the services offered at another program or clinic are better suited to an individual's needs, and the committee shall thereby be able to refer that individual to a more appropriate service provider. The committee's screening and intake determinations) shall be documented on standardized forms for each person being considered for services at the clinic.

(4) The admission committee shall be able to admit individuals under two categories of service need. They are:

(i) the need for a comprehensive diagnosis and evaluation (see paragraph [5] of this subdivision); or

(ii) the need for a particular diagnostic and evaluation service (see paragraph [6] of this subdivision).

(5) The admission committee, after screening an individual, shall be able to admit that person to the clinic for a comprehensive diagnosis and evaluation (see subparagraph [4][i] of this subdivision). The person with developmental disabilities shall then be admitted for the full complement of core services and, if required, for appropriate specialized clinical laboratory or medical services, or other optional services, and an individualized recommended treatment plan and an interdisciplinary team conference with attending clinicians, family, other correspondents, client and referring agency or person, if:

(i) the individual has been diagnosed with a developmental disability, or the individual has a tentative diagnosis but not a definitive diagnosis, or where further diagnostic specifications are required;

(ii) there is evidence or suspicion of functional deficits in areas related to developmental disabilities, and there is a need to perform specialized clinical laboratory diagnostic and evaluation services for the person to identify the existence, nature and extent of an illness, or a health or adaptive behavior deficit; and

(iii) the person requires comprehensive evaluation and diagnosis services, clinical specialized laboratory procedures, and may require other optional services so that a comprehensive and complete recommended treatment plan can be developed in order to accurately plan programs, treatment services and methods of intervention for the person.

(6) The admission committee may admit an individual to the clinic to receive a particular diagnostic and evaluation service (see subparagraph [4][ii] of this subdivision) if:

(i) the individual has been referred to the clinic for such a service as a follow-up, supplement, corollary to a comprehensive assessment and treatment plan received either at the clinic or elsewhere;

(ii) the admission committee upon screening the individual determines that he or she only needs a particular assessment or a combination of tests in a clinical discipline for the purposes of completing a diagnosis and/or treatment plan;

(iii) the individual requires emergency diagnostic services; or

(iv) the individual and/or his or her family requires referral, family or genetic counseling, planning or advocacy assistance.

(7) The admission committee shall specify the person's areas of deficit or suspected deficit and authorize that assessments, evaluations and treatment planning be performed in at least the areas specified.

(i) The admission committee shall authorize the delivery of either the comprehensive evaluation or a particular evaluation service. In either case, the admission committee shall specify in writing if core services are to be given, and which of the specialized clinical laboratory services and optional services are required for the person.

(ii) The admission committee shall specify if resident services at the clinic's residential unit (ICF/DD) are necessary, and the estimated duration of such services; the committee shall follow the admission criteria specified for ICF/DD level of care in determining residential eligibility.

(iii) The admission committee shall determine the approximate number of days or visits required to provide the person with the assessment and treatment planning services authorized at the time of intake and admission.

(iv) The admission committee shall authorize the provision of additional assessments, evaluations and specialized clinical laboratory, residential or other optional services if the clinicians in the course of their evaluations of the person with developmental disabilities consider them necessary for the development of the comprehensive diagnostic and evaluation profile of the individual so that he or she may receive optimal care. Clinicians authorizing additional services for a person shall follow provisions stipulated in subdivision (b) of this section in so doing.

(b) Criteria for authorizing additional and/or optional specialized clinical laboratory or residential services.

(1) The diagnostic and research clinic shall establish criteria written in its policies and procedures manual to authorize the provision of additional diagnostic, residential and/or other optional specialized clinical laboratory services for an individual. Such criteria shall be submitted to OPWDD for its approval.

(2) The diagnostic and research clinic shall develop and use standardized forms for authorizing additional specialized clinical laboratory, residential and/or any other optional diagnostic service for an individual.

(1) No person shall be admitted to the diagnostic and research clinic, or any of its service components, if the primary intent of admission is to perform a research procedure, and not a service to the person with disabilities.

(2) Nothing in this section should be construed to mean that persons may not be admitted to the overall research facility for purposes of conducting basic and/or applied research projects that have obtained appropriate institutional approvals and for which informed consents have been obtained.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.7 Utilization review

(a) Each diagnostic and research clinic shall have a utilization review committee and a written utilization review plan for evaluation of the need for services provided to persons with developmental disabilities. The same utilization review plan and the utilization review committee for internal utilization reviews shall address and review the diagnostic and research clinic's nonresidential component and its residential unit (i.e., the ICF/DD), so as to review the person's eligibility for services (resident/nonresident) at this level of care. The utilization review committee and the utilization review plan shall comply with the following requirements:

(1) Committee composition.

(i) The utilization review committee shall be composed of professionals including at least:

(a) one physician;

(b) one person who is a qualified intellectual disability professional; or

(ii) Additionally, the committee may and is encouraged to include:

(a) a representative of the local director of community services; and

(b) representative(s) from other programs affiliated with the diagnostic and research clinic and/or other programs giving services to persons being assessed by the clinic.

(iii) No member of the utilization review committee shall participate in the committee's deliberations regarding any person he or she is directly treating.

(2) Utilization review plan.

(i) Each diagnostic and research clinic shall have a separate written utilization review plan approved by the director and/or governing body, and by the bureau of utilization review of OPWDD.

(ii) The bureau of utilization review shall be responsible for reviewing each diagnostic and research clinic's plan and certifying to the appropriate State and Federal agencies that the plan meets all regulatory requirements.

(iii) The utilization review committee shall develop a plan for review to indicate at least:

(a) the criteria for providing each service;

(b) the methods for conducting review of admission appropriateness, authorization of specialized medical and clinical laboratory services, residential services, team planning conferences, and other optional services; or

(c) the requirements for conducting admission reviews prior to giving any services, and the requirements for conducting continued treatment reviews after services authorized at the intake screening have been delivered, and subsequent treatment reviews after corollary or supplemental services are given at follow-up visits to the clinic.

(iv) The utilization review plan shall require the utilization review committee to use the forms and criteria prescribed by OPWDD in accordance with instructions provided by the commissioner.

(v) The utilization review plan shall include requirements for a monthly report submitted to the commissioner of OPWDD. This report shall:

(a) summarize the activities of the utilization review committee; and

(b) include a copy of each notice of alternative care.

(vi) The utilization review committee shall keep minutes of its meetings sufficiently detailed to document its decisions and the basis for them so as to enable auditing by the local commissioner of social services or his or her designee, by any other authorized person or agency, or by OPWDD.

(b) In addition to the internal utilization review required by this section, OPWDD shall ensure the provision of at least one annual independent validation review of the population served by the clinic and the services provided at the clinic. This review shall determine the appropriateness of the level of service being provided.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.8 Buildings and equipment

(a) The entire physical plan of a diagnostic and research clinic shall be constructed and maintained so as to be structurally sound, physically safe, sanitary, convenient and comfortable.

(b) The diagnostic and research clinic shall comply with the following codes and regulations:

(1) chapter 10, 1973 edition, Life Safety Code of the National Fire Protection Association (NFPA No. 101);

(2) the State Building Construction Code (9 NYCRR Subtitle S, Chapter I) applicable to occupancy group C6.2;

(3) New York State Building Construction Code applicable to plumbing;

(4) the New York State Energy Conservation Code;

(5) New York State Lighting Power Standard;

(6) National Electrical Code;

(7) American National Safety Code for Elevators;

(8) Food Service Sanitation Publication 934 of the United States Department of Health, Education and Welfare;

(9) ASA Z66.1 "American Standards Specifications to Minimize Hazards to Children from Residual Surface Coating Material";

(10) American National Standards Institute (ANSI) Standards No. A 117.1 (1961). "American Standard Specifications for Making Buildings and Facilities Accessible to and Usable by the Physically Handicapped";

(11) New York State Department of Environmental Conservation requirements for waste disposal and air quality;

(12) New York State Department of Health requirements for water supply and sewage disposal;

(13) buildings which do not house bedrooms shall meet all requirements of the applicable sections of the State Building Construction Code (9 NYCRR Subtitle S, Chapter I); and

(14) the building in which the diagnostic and research clinic is located shall meet all applicable requirements of the State Building Construction Code (9 NYCRR Subtitle S, Chapter I, Occupancy Group B1) applicable to multiple dwellings.

(c) The commissioner of OPWDD may waive the application of specific provisions of any of the various codes noted above for a facility, for such periods as he or she deems appropriate, if the application of such provisions would result in an unreasonable hardship to the diagnostic and research clinic. However, the commissioner shall have authority to grant such waivers only if the health and safety of the persons with developmental disabilities served by the clinic will not be adversely affected.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.9 Staffing

(a) A description of and rationale for the diagnostic and research clinic's staffing pattern shall be included in the clinic's policies and procedures manual. Any changes in the staffing pattern, job descriptions, and/or minimal qualifications of the staff shall be reviewed and approved by OPWDD.

(b) The diagnostic and research clinic shall have appropriately qualified medical, clinical laboratory, professional, and administrative staff on duty in sufficient numbers to carry out the clinic's policies, responsibilities and services, and to maintain the premises in a safe and sanitary condition. A staff of sufficient size shall be employed so that the clinic does not have to depend on individuals or volunteers to provide services. However, interns and students assigned for formal work experience are encouraged to participate in the clinic's programs, but shall no be used as substitutes for staff.

(c) The diagnostic and research clinic shall have a director of its clinical laboratory certified by the New York State Department of Health (see paragraph [2] of this subdivision), who may also serve as the clinical director of the diagnostic and research clinic.

(1) The certified director of the clinical laboratory shall be responsible for administration of the technical and scientific operation of the clinical laboratory and/or blood bank, including supervision of procedures, reporting of results, and ensuring the validity of the results.

(2) The clinical laboratory director shall be certified under the State Sanitary Code as contained in 10 NYCRR Part 19.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 676.10 Recordkeeping

(a) OPWDD.

The diagnostic and research clinic shall maintain a comprehensive record of each person referred and admitted to the clinic. Each record shall be organized in the manner and contain the information specified by OPWDD for inclusion. Each individual's record shall contain the following types of information:

(1) person identification information, including, if applicable, a Medicaid or Medicare number, a developmental disabilities information survey profile, etc.;

(2) information regarding the person's medical and developmental history;

(3) copies of previous diagnoses or tentative diagnoses, assessments, progress notes, and, if possible, copies of individual program plans or service plans previously developed for the person at other programs or agencies;

(4) descriptions of treatment and medications previously administered;

(5) name and address of person or organization referring the individual to the diagnostic and research clinic and reason for such referral;

(6) criteria for admission eligibility and itemized lists of diagnostic and evaluation services, specialized clinical laboratory services, need for residential services and any other optional services required by the person. This section of the record shall include written authorizations by clinicians for diagnosis, evaluation or clinical laboratory services;

(7) authorizations signed by the clinic's attending physicians and/or clinicians who have designated that the person receive other optional services in addition to the core or optional services initially authorized by the admission committee;

(8) written authorizations by a physician or other clinician to admit a person for short-term residential care; such record should include date of admission, projected date of discharge, actual date of discharge, services received while in the residential unit, and a report of any significant occurrence in the life and experience of the person while staying at the clinic;

(9) discipline specific diagnostic summaries, evaluations and findings and recommendations for services; and

(10) minutes and decisions made by the interdisciplinary team including copies of the individual's recommended treatment plan in which at least the following shall be stated:

(i) primary and secondary diagnoses;

(ii) integrated evaluations, and statements concerning the severity of the disability;

(iii) prioritized long-range goals and short-range objectives that are matched to prioritized needs and areas of behavioral and medical deficits;

(iv) services and methods of interventions recommended to address the person's deficits; and

(v) recommendations for follow-up visits and/or recommendations to have the person receive services at other specialized diagnostic and evaluation programs;

(11) minutes of conferences conducted between clinical staff and the person and/or his or her correspondent in which the clinician's findings and recommendations are explained and discussed;

(12) minutes of conferences, meetings, discussions, etc., between clinical staff at the diagnostic and research clinic and the referring agency and/or the agency who has been or will be delivering the recommended services to the person; and

(13) notes and correspondence between clinic staff and referring agents, family, family physicians, advocacy organization, and programs providing services to the person or programs considering the person for admission.

(b) Administrative records.

The clinical director shall maintain or cause to be maintained the following administrative records:

(1) a chronological admission and discharge register which is a daily listing of individuals admitted to and discharged from the diagnostic and research clinic and the residential unit;

(2) notation of all accident and incident reports;

(3) a daily census record of the names of persons utilizing specialized clinical laboratory and/or medical services (for example, the clinic should maintain a record of each time the CTT scan is utilized, including the name of the person for whom it was used);

(4) fire drill records;

(5) dietary service records;

(6) records that document compliance with sanitation, health and environmental safety codes including written reports of inspections by State and local authorities having primary jurisdiction and records of action taken on their recommendations;

(7) copies of all transfer and affiliation agreements;

(8) a copy of the emergency disaster plan;

(9) a master plan for staffing;

(10) a personnel record for each staff member including all available preemployment information documentation of any inservice or specialized training received, and, for professional staff, a copy of their current registration and license or certificate.

(1) The staff of the diagnostic and research clinic shall maintain the confidentiality of all medical, social, personal and financial information about any person admitted or who is being considered or who has been considered for admission to the clinic; and the clinic shall make such information available only to authorized persons.

(2) The record is the property of the diagnostic and research clinic, which shall protect it from loss, damage, tampering or use by unauthorized individuals.

(3) Before releasing information to parties who are otherwise not authorized to receive it, the diagnostic and research clinic shall obtain written consent from the person, except that the written consent shall be obtained from the person's correspondent when either of the following applies:

(i) the person has been adjudicated incompetent under State law; or

(ii) the person is under the age of eighteen.

(4) The diagnostic and research clinic shall have appropriate records available for persons admitted to the clinic's residential unit.

(d) The diagnostic and research clinic shall submit information and reports to OPWDD in the format and manner prescribed by OPWDD.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 679 Clinic Treatment Facilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 679.1 Introduction and intent

(a) This Part establishes standards for participation in the provision of approved clinical services (see glossary and also section 679.3[j] of this Part) in a clinic treatment facility (see glossary) serving persons with developmental disabilities (see glossary). The operating certificate issued to a clinic treatment facility pursuant to this Part shall specify the clinical service areas, by discipline, approved, and the clinic certified setting(s) (by address[es]) under whose auspices said services are approved for delivery.

(b) Evidence of compliance with this Part along with Parts 633, 624, and 635 of this Title serve as the principal bases for the certification and recertification by the Office for People With Developmental Disabilities (OPWDD) (see glossary) of a clinic treatment facility serving persons with developmental disabilities.

(c) The purpose of a clinic treatment facility is to serve principally persons (see subdivision [e] of this section) with developmental disabilities and their collaterals (see glossary) as stipulated herein, either at a main clinic site certified by OPWDD or at a certified satellite site (see glossary) listed by address on the facility's operating certificate or, prior to April 1, 2016, off-site, by:

(1) Providing clinical services of principally a habilitative clinical nature to ameliorate or limit the disabling condition or other disease, illness, or condition through the provision of professional assessments and therapies, to persons, who because of their developmental disability, require such services to remain in or move to the least restrictive residential and/or day setting; or because such services are unavailable or inaccessible in the person's community.

(2) Providing services to a person through his/her collateral(s) for the purposes of enhancing the effectiveness of the treatment; enabling the person to remain in the family or placement setting as long as desired; and/or enhancing the person's quality of life.

(3) Providing convenient access to clinical services, including services available at nontraditional business hours, in nontraditional settings, making use of treatments delivered at certified satellite sites and, prior to April 1, 2016, when authorized, off-site.

(4) Providing access to clinical services to a person locate d in his/ her residence or other temporary location via telehealth (see glossary) while the provider is located either at a main clinic site certified by OPWDD or at a certified satellite site (see glossary)

(5) Providing clinical services that are not duplicative or substitutive of services provided by existing clinic treatment facilities. However, services described by the same clinical procedure code may be provided to address different clinical needs as documented in the clinic treatment plan. The treatment coordinator must document in the clinic treatment plan the coordination of similar clinical services provided to ensure there is no duplication of services.

(6) Providing quality services through the use of staff who hold the certification or licensure appropriate to their discipline and by program and/or staff affiliations with training institutions that can provide a source of continuing education as required to maintain current licensure.

(7) Offering managed health care (see glossary) as part of approved medical services (see section 679.3[j][3] of this Part) when serving as the person's principal care provider, by providing medical and/or dental care as well as coordinating tertiary medical care services, where it can be demonstrated that the generic health care system is either unavailable, without the specific capacity to provide quality services, inaccessible, and/or unable to serve such persons.

(8) Providing clinical services that are not duplicative of early intervention services authorized through an early intervention plan (EIP) or school or preschool supportive health services authorized through an individualized education plan; or duplicative of services available through the intermediate care facility for individuals with intellectual disabilities program, OPWDD operated or certified residential or day programs, or OPWDD funded home and community based services (HCBS).

(d) This Part is organized in a format consisting of principles of compliance and standards of certification. In reviewing the continued eligibility of a facility for an operating certificate, OPWDD shall survey for compliance with all "standards of certification" herein and any other applicable requirements. OPWDD may make inquiries into and evaluate evidence of noncompliance with the applicable "principles of compliance." The detailed premises for the principles of compliance and standards of certification format may be found at section 633.2 of this Title.

(1) Principles of compliance set forth the basic conditions for the operation of a facility. Facilities will not be routinely examined against principles of compliance at surveys for recertification. OPWDD reserves the right to monitor compliance with any applicable requirements at any time pursuant to the responsibilities of the commissioner (see glossary) under the Mental Hygiene Law.

(2) Standards of certification are criteria specified by OPWDD as necessary for compliance in order for a facility to demonstrate on a regular and ongoing basis that it can and will continue providing the appropriate environment to assure an adequate level of quality of care, welfare, individual rights, safety, and fiscal accountability. Surveys are conducted for the purpose of documenting compliance with standards of certification. Compliance with all applicable statutes and regulations, or an acceptable plan of correction, is a basis for issuing an operating certificate and/or renewing an operating certificate.

(e) The OPWDD certification process defined in subdivision 679.1(d) of this section is superseded by requirements in Part 619 of this Title, Certification of Facilities and Home and Community Based Services (HCBS), effective on the effective date of these regulations.

(f) OPWDD expects ongoing compliance with both principles of compliance and standards of certification included in this Part. Therefore, such compliance is the responsibility of the agency and is necessary for continued participation as a certified facility or funding as an approved program or service.

(g) As used herein, the terms, people, person(s), and individual(s) shall be understood to refer to those who have been admitted and are receiving services at a clinic treatment facility.

History

Amended New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 679.2 Statutory authority

(a) The following sections of the Mental Hygiene Law authorize the commissioner to establish separate classes of operating certificates for facilities serving persons with developmental disabilities and to establish the standards governing such facilities.

(1) Section 13.07 of the Mental Hygiene Law makes it the responsibility of OPWDD to assure the development of comprehensive plans, programs, and services in the areas of research, prevention, care, treatment, rehabilitation, education, and training of persons with developmental disabilities. The OPWDD also has the responsibility to ensure that such care, treatment, and other appropriate services provided under its aegis are of high quality and effectiveness and that the personal and civil rights of persons receiving services are adequately protected.

(2) Sections 13.09 and 16.00 of the Mental Hygiene Law sets forth provisions enabling the commissioner to regulate and assure the consistent high quality of services provided to persons with developmental disabilities. The commissioner may adopt and promulgate any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by this article.

(3) Prior to April 13, 2015, section 43.02 of the Mental Hygiene Law authorized the commissioner to establish rates or methods of payment for services at facilities subject to licensure by OPWDD. Effective April 13, 2015, section 43.02 of the Mental Hygiene Law authorizes the Department of Health to establish such rates and methods for payment, subject to the approval of OPWDD. Section 43.02 of the Mental Hygiene Law also authorizes the commissioner of OPWDD to require financial, statistical, and program information as the commissioner may determine necessary.

(b) Sections 364 and 364 (a) of the Social Services Law provide that OPWSDD shall be responsible for establishing and maintaining standards for medical care and services in facilities under its jurisdiction and that it will do so in accordance with cooperative arrangements with the Department of Social Services and other State agencies.

(c) Section 367-u of the Social Services Law provides that the commissioner shall not exclude from the payment of medical assistance funds the delivery of healthcare services through telehealth when the services are provided pursuant to section 2999-cc (3) of the Public Health Law and meet the requirements of federal law, rules and regulations.

(d) Chapter 58 of the Laws of 2009, section 21 authorizes the commissioners of OPWDD and Health to jointly implement the ambulatory patient group reimbursement methodology for determining rates of payment for clinic services rendered pursuant to providers' licensure under article 16 of the Mental Hygiene Law.

(e) Subdivision 2-a of section 2807 of the Public Health Law describes the ambulatory patient group methodology including a transitional process/schedule for implementation.

(f) Section 2999-cc of the Public Health Law provides that health care services, which must include the assessment, diagnosis, consultation, treatment, education, care management, and/or self-management of a patient, may be provided via the use of electronic information and communication technologies between qualifying providers located at a distant site and a patient located at an originating site.

(g) Section 4406-g of the Public Health Law provides that a health maintenance organization shall not exclude from coverage a service that is covered under an enrollee contract of a health maintenance organization because the service is delivered via telehealth.

(h) Sections 3217-h and 4306-g of the Insurance Law provide that under an insurance policy that provides comprehensive coverage for hospital, medical or surgical care, said services shall not be exclude d from cover- age because the service is delivered via telehealth.

History

Amended New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 679.5 Units of service-definitions and restrictions

(a) The unit of service shall be a clinic visit as defined below whether the service is delivered at the main certified site, or at a certified satellite site or, prior to April 1, 2016, off-site.

(b) A clinic visit is or defined as all the approved clinical services provided for a person, his/her collateral or potential admittee on a common date of service by practitioners of the healing arts and/or other authorized parties, except as follows:

(1) If a diagnostic and evaluation service is conducted over more than one day, the date of service for claiming purposes is the last day the service is provided.

(2) If an on-site clinic visit is provided and claimed for reimbursement on the same day as an off-site clinic visit (as allowed prior to April 1, 2016), reimbursement for each visit is considered a separate clinic visit.

(c) A clinic visit may include face-to-face service as define d by allow- able Current Procedural Terminology (CPT)/Healthcare Common Procedure Coding System (HCPCS) and/or Current Dental Terminology (CDT) codes, or such allowable services provided via telehealth.

History

Amended New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 679.6 Financial reporting

(a) Cost report.

Each agency that operates a clinic treatment facility certified by OPWDD shall, on an annual basis, be required to submit a cost report prepared in accordance with Subpart 635-4 of this Title, for each certified site including costs associated with any certified satellite sites, and, as allowed prior to April 1, 2016, costs associated with service delivery off-site.

(b) Each agency that operates a clinic treatment facility shall provide OPWDD information it requests, including but not limited to the following: services provided by CPT/HCPCS and/or CDT codes, where such services were delivered, including the location of both the provider and the individual when services are delivered via telehealth, (i.e., on-site or at a certified satellite site, or, prior to April 1, 2016, of f-site) and revenues by funding source or payee. These data shall correspond to the identical time period of the cost report.

(c) Each clinic treatment facility shall maintain financial records in accordance with the requirements of section 635-4.5 of this Title.

(d) The agency/facility shall complete an annual audit of its financial circumstances and condition, certified by a certified or licensed public accountant. Said audit report shall be completed and submitted in a manner and on a schedule acceptable to the commissioner.

(e) Allowable costs.

General conditions.

(1) To be considered allowable, costs must be properly chargeable to necessary care rendered in accordance with the requirements of this Part and any applicable codes, rules, regulations and laws.

(2) Except where specific rules concerning allowability of costs are stated herein, the Medicare Provider Reimbursement Manual, commonly referred to as HIM-15, shall be used to determine the allowability of costs. Said guidelines are published by the U.S. Department of Health and Human Services' Health Care Financing Administration (HCFA). The HIM-15 document is available from:

(i) Health Care Financing Administration

Division of Communication Services

Production and Distribution Branch

Room 577, East High Rise Building

6325 Security Boulevard

Baltimore, MD 21207......................................................................

(ii) It may also be reviewed in person during regular business hours at the:

(a) NYS Department of State, 99 Washington Avenue, Albany, NY 12231; or by appointment at the:

(b) NYS Office for People with Developmental Disabilities, Counsel's Office, 44 Holland Avenue, Albany, NY 12229.

(3) Costs incurred as a result of requests for criminal history record checks under section 16.33 of the Mental Hygiene Law and section 845-b of the Executive Law shall be allowable costs and shall be considered part of the fee.

(4) Where specific rules stated herein or HIM-15 are silent concerning the allowability of costs, the commissioner shall determine allowability of costs based on reasonableness and relationship to the provision of care and generally accepted accounting principles.

(5) As determined by the commissioner, expenses or portions of expenses reported by an individual clinic treatment facility that are not reasonably related to the efficient and economical provision of care in accordance with any applicable certification standards, because of either the nature or amount of the item, shall not be allowed.

History

Amended New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 679.7 Billing standards

(a) In order for the clinic treatment facility to be reimbursed for any service, the following conditions must be met:

(1) The clinic treatment facility shall have a valid Medicaid provider agreement with the New York State Department of Health at the time of service delivery.

(2) If the facility is authorized to provide any medical or dental care as a person's principal source of such care, the facility shall become a Medicare provider and submit for Medicare reimbursement as appropriate.

(3) Clinic services shall be delivered in accordance with the person's clinic treatment plan (see section 679.4[j] and [k] of this Part), except for a clinic intake and diagnostic and evaluation services.

(4) Initial clinic treatment plans shall reflect coordination with all of the person's other individualized written plans of services that are required by law or regulation. In addition, for persons who reside in an OPWDD-certified residence, such initial clinic treatment plans shall identify any clinic services to be delivered prior to April 1, 2016 in the OPWDD-certified residence and the justification for the delivery of the specific clinic services in the residence.

(5) Documentation of each clinic service shall specify the location of service delivery.

(6) Billing claims for services (except for a clinic intake) shall include the National Product Identifier (NPI) of the clinician delivering the clinic service or the clinician supervising the delivery of service, except for rehabilitation counselors and those employed by the State of New York who are not licensed but meet the civil service qualifications at the professional level appropriate to their discipline.

(7) Clinic treatment facilities shall assign ICD diagnostic codes and CPT/HCPCS procedure codes to all clinic services as appropriate and shall submit such information to DOH or to DOH's designee in accordance with written billing and reporting instructions issued by OPWDD and DOH.

(b) In order for the clinic treatment facility to be reimbursed for any clinic service delivered in an OPWDD-certified residence, as allowed prior to April 1, 2016, the clinic treatment facility shall retain a written description of the clinic services delivered in each residence, specifying the persons who received services, the specific services that were delivered to each person, and the justification for delivery of clinic services in the residence. The clinic treatment facility shall retain the consent of the executive director (or his/her designee) of the agency operating the residential facility or sponsoring agency for the delivery of such clinic services as described. Such consent was required on at least an annual basis. Consent was required before a new person began receiving clinic services at the residence and before any person began receiving a type of clinic service at the residence for which there was no current consent.

History

Amended New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 679.8 Reimbursement methodology

(a) Definitions.

Definitions pertaining to the ambulatory patient croup classification and reimbursement methodology can be found in 10 NYCRR section 86-8.2. Additional definitions are as follows:

(1) Coding improvement factor. A numeric value which OPWDD may use to adjust for more complete and accurate coding for visits upon implementation of the APG reimbursement system.

(2) Evaluation and management (E&M) services. Services and/or consultations as designated by CPT provided by a physician, nurse practitioner or an appropriately supervised physician assistant.

(b) Ambulatory patient groups (APG).

For services provided on or after July 1, 2011, the operating component of rates shall be reimbursed using a methodology that is prospective and is based upon the APG classification and reimbursement system as described in 10 NYCRR sections 86-8.2, 86-8.7, 86-8.9(a), 86-8.10 and 86-8.11(b).

The operating component of the rates is the product of the peer group base rate times the procedure's allowed relative APG weight or the final APG weight for each APG on a claim.

(1) The base rates.

There shall be a separate base rate for each peer group. OPWDD's three peer groups and base rates are as follows:

(i) Peer Group A. Except for clinics described in subparagraph (iii) of this paragraph, Peer Group A shall be comprised of clinic treatment facilities that have the certified main clinic site located in New York City or Long Island, i.e., the counties of New York, Bronx, Kings, Queens, Richmond, Nassau and Suffolk. The base rate for Peer Group A is $180.95.

(ii) Peer Group B. Except for clinics described in subparagraph (iii) of this paragraph, Peer Group B shall be comprised of clinic treatment facilities that have the certified main clinic site located in a county other than those identified in subparagraph (i) of this paragraph. The base rate for Peer Group B is $186.99.

(iii) Peer Group C. Clinic treatment facilities that are affiliated with and serve two major hospital systems and have the following Federal designations as of July 1, 2011:

(a) University Center for Excellence in Developmental Disabilities (UCEDD) by the United States Department of Health and Human Services' Administration on Developmental Disabilities (ADD); and

(b) National Institutes for Health's (NIH's) Eunice Kennedy Shriver National Institute of Child Health and Human Development Intellectual and Developmental Disability Research Center (IDDRC); and

(c) Maternal and Child Health Bureau (MCHB), Health Resources and Services Agency of the United States Public Health Service, Leadership Education in Neurodevelopmental and Related Disabilities (LEND) training program.

The base rate for Peer Group C is $270.50.

(2) APGs and APG relative weights are listed in 10 NYCRR section 86-8.7.

(d) Capital cost component.

If a visit includes a service which maps to an APG which allows a capital add-on, there shall be a capital add-on to the operating component of the APG payment for the visit.

(1) The capital cost component shall be a fixed amount equal to the capital cost component of the clinic's regular visit fee in effect on June 30, 2011.

(2) Beginning July 1, 2012, OPWDD shall subject the capital cost component to an annual review for certain clinic treatment facilities.

(i) Clinics specifically subject to review are those which:

(a) had operating certificates for a diagnostic and treatment center issued by the NYS DOH pursuant to article 28 of the Public Health Law; and

(b) transferred long term therapeutic and clinical habilitative services on or after April 1, 2009 to an operating certificate for a clinic treatment facility issued by OPWDD pursuant to article 16 of the Mental Hygiene Law; and

(c) received funding of the property component in an amount equal to the previously approved article 28 DOH diagnostic and treatment center property component.

(ii) OPWDD's review shall consist of a comparison of the capital cost reimbursement in effect at the time of its review to the clinic's actual capital expenditures as reflected in its annual financial report submitted for the period two years prior to the period subject to revision.

(iii) For those clinics reviewed pursuant to this paragraph, the capital cost component shall be the lesser of:

(a) the most recent reimbursement; or

(b) the greater of:

(1) the actual capital expenditures; or

(2) the amount reimbursed to clinic treatment facilities certified by OPWDD which do not meet the criteria specified in subparagraph (i) of this paragraph.

(e) Clinic services not paid based upon the APG classification and reimbursement system are described in 10 NYCRR section 86-8.10 Exclusions from payment.

History

Amended New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 679.10 Incorporation by reference

Materials incorporated by reference in 10 NYCRR section 86-8.11(b) are also incorporated by reference in this Part.

History

Amended New York State Register March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

Part 680 Specialty Hospitals

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.1 Background and intent

(a) Within the continuum of human services offered by OPWDD (see section 680.13 of this Part), the specialty hospital (see section 680.13) is designed as the most intensive provider of care for individuals with developmental disability and health care problems (see section 680.13) through an integrated combination of assessment services, active programming, continuing medical treatment, and residential arrangements.

(b) The specialty hospital serves as a transitional setting which has as its primary goal the prevention, amelioration, or limitation of health care problems for individuals with developmental disabilities to enable the movement of such individuals to less restrictive environments.

(c) Because active programming, medical treatment and residence are combined in a single setting, the specialty hospital is considered as the most restrictive environment which offers 24-hour care to people with developmental disabilities whose health problems, rather than developmental disability per se, prevent placement in an alternative, less restrictive placement.

(d) Individuals admitted to a specialty hospital shall have a previously established diagnosis of developmental disability as determined by the OPWDD through the eligibility process (see section 680.13 of this Part) and shall require:

(1) active programming (see section 680.13) for their developmental disabilities; and

(2) individualized attention for more than three hours per day for health care problems.

(e) Services within a specialty hospital shall be oriented toward ameliorating the health care problem(s) preventing a n individual's movement to the least restrictive treatment alternative (see section 680.13 of this Part). Therefore, health care problems preventing such movement shall be identified for individuals prior to their admission to a specialty hospital. Services focused on these identified problems shall be delivered with the frequency and intensity necessary to affect a rapid transition to less restrictive treatment alternatives. In general, comprehensive programming aimed toward a general increase in all aspects of individual functioning is not the primary emphasis of specialty hospitals.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.2 Statutory authority

(a) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under their jurisdiction.

(b) Section 29.01 of the Mental Hygiene Law empowers the commissioner to make regulations governing admissions of individuals with developmental disabilities to facilities for the residential care, treatment, training or education of the individuals with developmental disabilities for which the commissioner has issued an operating certificate.

(c) Section 16.00 of the Mental Hygiene Law authorizes the commissioner to issue regulations governing the operation of programs and the provision of services for persons with developmental disabilities.

(d) Section 16.03 of the Mental Hygiene Law requires an operating certificate issued by the commissioner for operation of any part of a general hospital for the purpose of providing residential or nonresidential services for the people with developmental disabilities. This section also prohibits any provider of service from engaging in the operation of a residential facility for the care, custody and treatment of the people with developmental disabilities without an operating certificate issued by the commissioner.

(e) Section 16.01 of the Mental Hygiene Law authorizes the commissioner to issue regulations governing the uniform definition of services, uniform standards of comparable services and programs, uniform financial reporting procedures, uniform clinical reporting procedures; and uniform requirements for the generation of data for persons receiving services under the auspices of the Office for People With Developmental Disabilities.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.5 Admission criteria

(a) Only individuals whose needs can be met by the specialty hospital shall be admitted to it. The number admitted shall not exceed the specialty hospital's certified capacity to provide adequate programming.

(b) All admissions to the specialty hospital shall require the prior approval of the commissioner. Request for such prior approval shall be submitted on the forms and in the format acceptable to the commissioner and shall document that all admission criteria and procedures have been met. The commissioner shall process all such requests for prior approval without undue delay.

(c) A specialty hospital shall admit only individuals with developmental disabilities as defined in section 1.03(22) of the Mental Hygiene Law and as determined by the OPWDD through the eligibility process; and who require active programming for their developmental disability(ies); and who manifest at least one severe deficit in adaptive behavior (see section 680.13 of this Part). In addition, such individuals shall manifest a health care problem which requires more than three hours of daily individualized attention from health care staff (see section 680.13).

(d) Individuals admitted to a specialty hospital shall require simultaneous assessment or treatment for their health care needs and structured programming for their developmental disabilities. A specialty hospital covered under this regulation shall admit only individuals who have had a comprehensive assessment (see section 680.13 of this Part) within the 90 calendar days prior to admission. This assessment shall have identified both the individual's developmental disability(ies) and health care needs which will require more than three hours of daily individualized attention from health care staff. In addition, there shall be an identification of the anticipated service(s) required by the individual which are congruent with the conditions necessitating admission.

(1) This requirement may be waived in an emergency situation which poses a danger of death or irreversible disability to the individual. However, in such instances, the condition necessitating the emergency admission must be identified and assessed prior to admission.

(2) In an emergency admission situation, the comprehensive assessment shall be completed within 15 calendar days of admission.

(e) The specialty hospital shall admit only those individuals who, due to their medical condition, cannot be placed in a less restrictive environment that is able to provide both medical treatment and active programming, because of their need for the services provided by the specialty hospital.

(1) Individuals admitted to a specialty hospital shall require a letter(s) from a treating physician(s) recommending the specialty hospital placement and the reason(s) that a less restrictive environment is not sufficient.

(f) Individuals with developmental disabilities with an acute health care need(s) (see section 680.13) that prohibits active programming for their developmental disability(ies) shall not be admitted to the specialty hospital.

(g) A correspondent (see section 680.13) shall be identified for each individual prior to admission to the specialty hospital.

(h) Individuals shall be admitted for a maximum stay of six months. One extension of no more than six months may be requested by the specialty hospital by submitting required documentation to OPWDD within a required timeframe. The OPWDD Independent Utilization Review Committee, or an organization authorized by OPWDD to complete the Independent Utilization Review, shall approve or deny the request for the extension. Any further extension requires both the recommendation of the OPWDD Independent Utilization Review Committee, or OPWDD authorized organization, and the consent of the commissioner.

(i) At the time of admission, the type of placement and proposed location (if known) shall be identified and documented in the individual's record for preparation for each individual's placement subsequent to leaving the specialty hospital.

(1) Prior to admission, there shall be a written plan of placement identifying time frames and persons responsible to reasonably assure the readiness of the proposed placement within the six-month transitional specialty hospital placement.

(2) For Willowbrook class members (see section 680.13 of this Part), at the time of admission, residence shall be identified by name and address for each individual's placement subsequent to leaving the specialty hospital. The sole exception to this requirement shall be constituted when the individual's treatment at the specialty hospital may make a less restrictive placement possible than is apparent at the time of their admission. In this instance, the type of placement under consideration shall be described at the time of admission.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.6 Individual program planning and review

(a) Each individual of a specialty hospital shall have an individual program plan which describes for the individual their medical treatment for health-related problems and active programming for developmental disability(ies).

(b) Programming and treatment shall be directed at those aspects of the health-related conditions and developmental disability necessitating the restrictiveness of the specialty hospital placement. The type and duration of programming and treatment shall be structured to enable the individual's movement to a less restrictive environment as quickly as possible with regard for each individual's disabilities.

(c) Each individual program plan shall state the conditions requiring admission to a specialty hospital, the course of treatment and programs prescribed for these conditions and the anticipated outcomes of treatment and programs.

(d) The individual program plan shall be developed and implemented by an interdisciplinary team (see section 680.13 of this Part) including the providers of medical treatment and active programming and direct care staff. The individual and the individual's correspondent are part of the interdisciplinary team unless the individual is an adult capable of objecting to such participation and does object. One member of this team who is a qualified intellectual disability professional (see section 680.13) shall serve as coordinator (see section 680.13) with primary responsibility for implementation of the individual program plan, coordination of its components and for arranging movement of the individual to a less restrictive environment as soon as the individual's needs permit. If the individual has a supported decision-making agreement (see Part 634 of this Title) that identifies a supporter or supporters to assist the individual in making decisions related to medical care, active programming, or other forms of therapeutic treatment, such supporter or supporters shall be considered part of the interdisciplinary team unless the individual objects to such participation.

(e) Active programming is to take place in a setting separate from the individual's living and sleeping areas unless it is necessitated because of an individual's health care problem(s) and prescribed by a physician (see section 680.13 under "Professional Staff").

(f) The combination of goal-oriented health care, medical treatment, and active programming, excluding recreation, shall be at least six hours per day, five days per week in the manner recommended by each individual's interdisciplinary team and as documented in the individual program plan. The medical treatment and active programming for these conditions necessitating admission to the specialty hospital shall be provided with the frequency and duration prescribed by the individual's interdisciplinary team and documented in the individual program plan. Thus, a person may receive more than six hours of medical treatment and structured programming per day, but can only receive less than six hours per day if a physician has certified in writing that such activities would be medically harmful to the individual. For Willowbrook class members, approval of the programming exemption must be obtained from the consumer advisory board.

(g) Each individual program plan shall specify the conditions to be treated, and the anticipated preventive and/or restorative outcomes resulting from the various therapeutic interventions to be used. The individual program plan shall be written and maintained in the manner, frequency and format prescribed by OPWDD and shall contain the following components:

(1) the goals and long- and short-term objectives established to attain or maintain the optimal level of health, self-care, communication, learning, mobility, recreation and capacity for independent living of which the individual is presently or potentially capable;

(2) service plans for each mandatory and selective service which combine into an integrated program of individually designed activities, experiences and programs necessary to achieve each individual's objectives. These plans shall contain, as appropriate, specific individual medical prescriptions or written direction from the interdisciplinary team for all necessary services;

(3) progress notes describing the individual's response to programs and services;

(4) an activity schedule for each individual which includes all programs, services and leisure time activities prescribed by the interdisciplinary team; and

(5) identification of the person responsible for providing each program or service.

(h) Review of each individual program plan shall be performed as follows:

(1) At least monthly a member or members of the interdisciplinary team shall review the individual's response to the individual program plan to determine any necessary modifications. Written documentation of such reviews shall be maintained in the individual's record.

(2) At least quarterly, the interdisciplinary team shall collectively review and evaluate each person's individual program plan. This review shall describe the improvement or lack of improvement in those conditions for which the individual was admitted and additionally include:

(i) such reassessments of the individual's condition, assets or disabilities as may be indicated prior to the interdisciplinary team's review conference;

(ii) participation by the individual or their correspondent, unless the individual is an adult competent to object and objects to such participation; and the individual's chosen supporter or supporters if the individual has a supported decision-making agreement (see Part 634 of this Title) that identifies a supporter or supporters to assist the individual in making decisions related to medical care, active programming, or other applicable forms of therapeutic treatment;

(iii) input and relevant participation from professional and nonprofessional staff providing services to the individual;

(iv) a review of the individual's response to the active programming provided during the previous quarter; and

(v) establishment of modified or new long- and short-range objectives, as appropriate.

(3) At least quarterly, the coordinator shall send written notification of the individual's medical condition and progress in programs and services to the individual and, individual's correspondent. If the individual has a supported decision-making agreement (see Part 634 of this Title) that provides that a supporter is to receive a copy of notice made to the individual, that supporter must also receive a copy of any notice specified in this section, unless the individual or the supporter specifies that they do not wish for the supporter to receive such notice.

(4) Prior to discharge or for an extended stay beyond six months and performed in accordance with individual need, an interdisciplinary team, as defined in section 680.13 of this Part, shall conduct a comprehensive reassessment (based upon individual assessments) of each individual, covering self-care, medical, communication, learning, mobility and capacity for independent living.

(5) At least quarterly, the interdisciplinary team shall collectively review the status of each individual, including consideration of the following:

(i) the advisability of continued stay at the specialty hospital and alternative programs; and

(ii) review of the need for guardianship and how the individual may exercise their civil and legal rights when the person legally becomes an adult.

(i) The individual's individual program plan and program shall be periodically monitored by OPWDD to ensure:

(1) the adequacy of the record and the appropriateness of the services delivered;

(2) integration of all programs and services provided to each individual;

(3) required reviews and assessments are accomplished as prescribed in this Part; and

(4) the notifications required in paragraph (h)(3) of this section are made.

(j) The specialty hospital shall maintain the following system of records:

(1) Individual record. The specialty hospital shall maintain a comprehensive record for each person. Each record shall be organized in the manner and contain the information prescribed by OPWDD. Each individual's record shall contain the following types of information:

(i) identification information;

(ii) admission information, including the individual's medical and developmental history, and documentation of the commissioner's prior approval of admission;

(iii) a current individual program plan (as specified in subdivisions [a] through [i] of this section);

(iv) copies of assessments, reassessments, progress notes and previous individual program plans;

(v) service plans, description of treatments provided and medications administered;

(vi) reports of illness or injury including the date and time of occurrence and action taken regarding each occurrence;

(vii) summary of findings, progress and plans when the individual is discharged.

(2) Record of program operations. In addition to records required in accordance with applicable provisions in Parts 624, 625, 633, and 635 of this Title, and other applicable provisions of this Part, the administrator shall maintain or cause to be maintained the following records of program operations:

(i) a chronological admission and discharge register which is a daily alphabetical listing of individuals admitted and discharged from the specialty hospital by name of individual, including referral and/or placement information;

(ii) records that document compliance with sanitation, health and environmental safety codes including written reports of inspections by State and local authorities having primary jurisdiction and records of action taken on their recommendations;

(iii) copies of all transfer and affiliation agreements; and

(iv) a master plan for staffing.

(3) Central record service.

(i) The specialty hospital shall maintain a centrally administered record service for the collection and release of individual information.

(ii) The specialty hospital shall make records readily accessible to authorized personnel.

(iii) The specialty hospital shall retain all clinically oriented individual records in accordance with OPWDD requirements.

(iv) The specialty hospital shall submit any data or information contained in the individual records, the record of program operations or any other agency records to the commissioner upon request. Such requested information shall be submitted in the format and manner prescribed by OPWDD.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.8 Staffing

(a) A description of and rationale for the specialty hospital's staffing pattern including both mandatory and selective services shall be submitted as part of the initial application for certification. This description shall specify for each service the programs to be offered and the number of individuals to be served by each staff member. Any changes in the staffing pattern, job descriptions and/or minimum qualifications of the staff must receive the prior approval of the OPWDD.

(b) There shall be qualified staff on duty during all hours of each day in sufficient numbers to carry out the policies, responsibilities and programs of the specialty hospital, and to maintain the premises in a safe and sanitary condition. A staff of sufficient size shall be employed so that the specialty hospital does not depend on individuals or volunteers for services. However, interns and students assigned for formal work experience, and volunteers who are registered and have formal duty assignments are encouraged to participate in the program, but are not to be used as substitutes for the staff.

(1) The administrator of the specialty hospital shall have the following qualifications:

(i) a degree of doctor of medicine or a master's degree or its equivalent in hospital administration, public health, science, administrative medicine or business administration when granted for a program in hospital administration, from a college or university accredited by the New York State Education Department or whose program is approved by the Association of University Programs in Hospital Administration. Such person shall have a minimum of two years as the administrator, associate or assistant administrator of an accredited hospital or in health service administration acceptable to the commissioner; or

(ii) a degree as a registered nurse with a minimum of three years experience as an administrator, associate or assistant administrator of an accredited hospital, or in health services administration acceptable to the commissioner; or

(iii) a bachelor's degree from a college or university accredited by the New York State Education Department and has served a minimum of five years as an administrator, associate or assistant administrator in an accredited hospital, or in health services administration acceptable to the commissioner.

(2) The administrator of the specialty hospital shall ensure that there is a qualified physician to serve as medical director of the specialty hospital. This physician shall be a staff member and shall direct and supervise the health and medical care of the individuals and maintain the general health conditions and practices of the specialty hospital.

(3) The administrator of the specialty hospital shall appoint an individual as program director to have overall responsibility for the developmental programming services at the facility. Such person shall, at a minimum, meet the qualifications of professional staff in their respective discipline.

(4) The administrator shall continuously employ an adequate number of appropriately qualified staff to carry out the program of prevention, diagnosis, treatment, habilitation and rehabilitation effectively. A written rationale for the staffing pattern utilized shall be prepared. If the specialty hospital is a unit of a general hospital or a program within an agency funded by OPWDD, then this rationale must clearly specify any regular use of personnel whose primary duty assignments are elsewhere in the general hospital or within the agency funded by OPWDD. (However, the specialty hospital shall be solely responsible for all services provided to individuals in its care and no other department, unit, agency or hospital shall separately make claims for payment for these services. The specialty hospital shall be responsible for ensuring that no duplicate billing occurs.)

(i) The medical director and all staff physicians shall be currently registered and licensed to practice medicine in the State of New York; their qualifications shall be reported to OPWDD at the time of their employment.

(ii) The specialty hospital shall not permit the physicians in training to perform a service for which a license is required by the State of New York except as a part of an approved training program and/or unless authorized on a temporary certificate to practice medicine at the specialty hospital. Such physicians in training or on a temporary permit are to be under the direct control and supervision of a currently registered and licensed physician.

(a) A training program, to be approved, must be accredited by the Council on Medical Education of the American Medical Association, the appropriate specialty boards or any other recognized approval body based on standards acceptable to OPWDD.

(b) With respect to the care of recipients of Federal health insurance and medical assistance only, training programs must comply with the requirements of applicable rules and regulations of the Secretary of Health and Human Services pertaining to resident, intern and medical student training programs enacted to the Health Insurance for the Aged Act.

(iii) All direct service, other than in an emergency, provided by interns, house officers, residents or physicians with equivalent titles must be provided as specified in paragraph (ii) of this subdivision or must be provided by a physician currently registered and licensed to practice in New York State.

(iv) The nursing service shall be under the direction of a professional nurse currently registered and licensed to practice in the State of New York and experienced in the care of individuals with developmental disabilities and in the administration of nursing services.

(v) All staff members providing services as members of professions, the practice of which is by law required to be licensed, certified or registered shall file documentation of compliance with the governing body; this documentation shall be retained on file and made available to OPWDD upon request.

(vi) All staff members providing services as members of professions, the practice of which does not by law require licensure, certification or registration shall file documentation of their training and experience with the governing body. This documentation shall be retained on file and made available to OPWDD upon request.

(vii) All other program staff shall have qualifications appropriate to their assigned responsibilities as set forth in written policies of the governing body and shall be subject to appropriate professional staff supervision.

(5) There shall be at least one licensed physiatrist on the staff of specialty hospital s that have an approved capacity of twenty (20) or more individuals. The physiatrist shall be present at the specialty hospital at least a portion of five (5) working days per week and visit at least weekly all individuals requiring physiatric services. For specialty hospitals with an approved capacity of fewer than twenty (20) individuals, an on-staff physiatrist is not required.

(c) The specialty hospital shall employ and assign to each individual living unit a sufficient number of appropriately qualified and trained personnel to provide health care services and self-care services. Staffing for each living unit shall be based on the severity of disabilities of all individuals.

(1) The specialty hospital shall have at least one full-time physician who is regularly on duty at such facility 40 hours per week. The required number of qualified full-time equivalent physicians on duty or on call shall be as follows:

(i) if the number of individuals is less than 125, one physician on duty at all times, or one nurse practitioner on duty at all times and one physician on call and available to the nurse practitioner at all times though not necessarily on site, shall be required;

(ii) if the number of individuals is less than 200, but greater than 125, then one physician shall be on duty at all times and one physician shall be on call though not necessarily on site;

(iii) if the number of individuals exceeds 200, but is less than 225, two physicians shall be on duty at all times; and

(iv) if the number of individuals is greater than 225, the number of physicians on duty at all times shall be determined by the commissioner.

(2) There shall be on duty to provide nursing services during the first and second shift s one registered nurse for every 20 individuals; during the third shift, through the hours when individuals are sleeping, there shall be on duty one registered professional nurse for every 30 individuals. The calculation of this ratio shall exclude nurses who serve as supervisors and any on duty nurse practitioners as identified in subparagraph (c)(1)(i) of this subdivision.

(3) There shall be at least one qualified dietitian (see section 680.13 of this Part under "Professional Staff") to direct nutrition services.

(4) There shall be least one therapeutic recreation therapist (see section 680.13 of this Part under "Professional Staff") or leisure time specialist for every 60 individuals. These staff members shall work only during afternoon and evening hours except for weekends and holidays when they shall be available during the full span of the majority of individuals' waking hours.

(5) The specialty hospital shall employ and maintain sufficient direct care staff to ensure that the following numbers shall be present and on duty:

(i) during the hours of the day and evening when individuals are awake, there shall be one staff member for every four individuals; and

(ii) during sleeping hours there shall be one staff member for every 12 individuals.

(6) All supervisors of direct care staff shall be registered nurses, licensed practical nurses (see section 680.13 under "Professional Staff"), or qualified professionals from other clinical professions.

(7) The ratio of qualified professional staff to individuals shall be at least 1:3 within both mandatory and selective services.

(8) The administrator of the specialty hospital shall ensure that a minimum of 25 percent of the full-time equivalent staff shall meet the qualifications of professional staff.

(9) There shall be a qualified intellectual disabilities professional (QIDP) who is responsible for supervising the implementation of each person's individual program plan, integrating the various services received by each individual, recording each individual's progress and initiating periodic review of each individual program plan as stipulated by this regulation. All professionals assigned this responsibility shall have it clearly identified in their job descriptions with the number of hours allocated to this task.

(d) The following professional staff shall be available either as employees of the specialty hospital, by agency staff that works in other departments or units separate from the specialty hospital, or through contract with other agencies in conformity with the following requirements. (However, the specialty hospital shall be solely responsible for all services provided to individuals in its care and no other department, unit, agency or hospital shall separately make claims for payment for these services. The specialty hospital shall be responsible for ensuring that no duplicate billing occurs.)

(1) communications therapist(s):

(i) at least one audiologist; and

(ii) at least one speech pathologist for every 20 individuals requiring communication services.

(2) at least one dental hygienist;

(3) at least one occupational therapist for every 20 individuals requiring occupational therapy;

(4) a specialist in orthotics (see section 680.13 under "Other Staff") who shall have the necessary resources in available staff, equipment and funds to design, construct, modify and repair adaptive equipment to meet the needs of individuals;

(5) a registered pharmacist;

(6) at least one physical therapist for every 20 individuals requiring physical therapy;

(7) at least one licensed psychologist for all individuals requiring psychological services. Additional master's level psychologists may be used under the supervision of a licensed psychologist at a ratio of 1:50 for individuals requiring psychological services;

(8) at least one licensed social worker for every 40 individuals;

(9) the specialty hospital shall employ sufficient mid-level supervisors (see section 680.13) to ensure that there will be one such person present and on duty for each 24 individuals on both the day and evening shifts, and one such person present and on duty for each 48 individuals during the night shift;

(10) personnel and vehicles to transport individuals comfortably and safely; and

(11) if shortages of personnel exist in a particular clinical discipline for programs and services offered by the specialty hospital, and the specialty hospital has made a good faith effort to recruit replacements, OPWDD shall assist the hospital in recruiting and hiring of personnel when individuals in the facility demonstrate the need for this clinical expertise.

(e) The specialty hospital shall employ sufficient qualified staff and support personnel to accurately process, check, index, file and retrieve records and to record data promptly.

(1) The specialty hospital shall employ or contract for an adequate housekeeping staff to meet the housekeeping needs of the facility.

(2) The specialty hospital shall employ or contract for an adequate maintenance and engineering staff to provide for a preventive and emergency maintenance program.

(3) The specialty hospital shall employ a sufficient number of trained and experienced personnel to perform purchase, supply and property control functions.

(f) There shall be a staff training program provided to all employees, in addition to training required in section 633.8 of this Title, that includes:

(1) orientation for all new employees, volunteers and interns to acquaint them with the philosophy, organization, program practices and goals of the facility and emergency and first-aid procedures;

(2) periodic (at least semi-annual) in-service training to update and improve the skills of all employees in addition to intensive and continuous in-service training for employees who have not achieved the desired level of competence in accordance with specified job performance criteria;

(3) supervisory and management training for all employees in or candidates for supervisory positions;

(4) direct care staff shall be trained in the following areas:

(i) developmental disabilities;

(ii) positioning and handling individuals;

(iii) proper feeding techniques;

(iv) detecting signs of illness and dysfunction that warrant medical or nursing intervention;

(v) basic skills required to meet the health needs and problems of the individuals; and

(vi) first aid for accident or illness.

(5) records shall be maintained which document the names of staff participating in the orientation and in-service programs, and the content and frequency of these programs; and

(6) if a specialty hospital lacks sufficient resources to conduct an in-service training program, it shall make arrangements with another appropriate community resource or training facility to provide such training.

(g) All professional program staff shall spend a majority of their working hours in direct interaction with and observation of individuals and staff in areas where programs are taking place. Emphasis shall also be placed on training and supervision of staff occurring through direct interaction rather than in settings where individuals are not present.

(1) Interdisciplinary team meetings where individuals and/or the families of individuals are present may be considered as a portion of time spent in direct interaction with the individual.

(2) Every effort shall be made by professional staff to be actively engaged with individuals during the hours individuals are scheduled for active programming. Whenever possible, meetings, report writing and other administrative tasks shall take place during the hours when individuals are not scheduled for active programming.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.9 Utilization review

(a) Each agency operating a specialty hospital shall have a utilization review committee and a written utilization review plan for evaluation of the need for services provided to individuals that shall be approved by the OPWDD. The utilization review committee and the utilization review plan shall comply with the following minimum requirements:

(1) Committee composition.

(i) The utilization review committee shall be composed of professionals (as defined in section 680.13 of this Part), including at least:

(a) two physicians or one physician and one nurse practitioner; and

(b) other professional staff (as described in section 680.13) who are representatives of the disciplines in the specialty hospital.

(ii) No member of the utilization review committee shall participate in the committee's deliberations regarding any individual they are treating directly.

(iii) No member of the utilization review committee shall participate in the committee's deliberations if they have a financial interest in any hospital.

(2) Utilization review plan.

(i) Each agency must have a separate written utilization review plan approved by the medical staff, administrator and the governing body, and the OPWDD.

(ii) The OPWDD is responsible for reviewing each agency's plan and certifying to the appropriate State and Federal agencies that the plan meets all regulatory requirements.

(iii) The utilization review plans must provide that each individual's record includes information needed for the utilization review committee to perform the required utilization review.

(iv) The utilization review committee shall assure confidentiality with respect to individuals and physicians in its minutes and in its reports. individuals will be identified by medical chart number and physicians by physician employee number.

(v) The utilization review plan shall require the utilization review committee to perform the following reviews:

(a) An admission review within three days of admission to ensure that any person admitted to the facility meets the admission criteria and that the facility services are at the appropriate level of care for the individual.

(b) A continued stay review within 30 days of admission, and every six months subsequent to the date of admission when an extension has been approved by OPWDD, to ensure that the individual meets the criteria for continued stay and that the facility's services are meeting the individual's needs.

(b) In addition to the requirements for admission and continued stay requests, the specialty hospital's utilization review plan shall describe the methods the utilization review committee uses to select and conduct health and habilitation care reviews. The purpose of such reviews shall be to promote the most effective and efficient use of the specialty hospital's facilities and services consistent with individual needs and professionally recognized standards of health and habilitation care. Such reviews shall emphasize identification and analysis of patterns of care and shall recommend appropriate changes that will maintain consistently high - quality care along with effective and efficient use of services.

(1) The health and habilitation care plan shall outline the utilization review committee's determination of the methods to be used in selecting and conducting the evaluation reviews in the hospital.

(2) Each health and habilitation care review shall document:

(i) its results;

(ii) an analysis of the results;

(iii) how the results have been used to make changes to improve the quality of care and promote more effective and efficient use of the specialty hospital's facilities and services;

(iv) the action taken as needed to correct or investigate further any deficiencies or problems in the review process for admission or continued stay; and

(v) its recommendations for more effective and efficient specialty hospital care procedures.

(3) Each health and habilitation care review shall:

(i) identify and analyze the health, habilitation or administrative factors related to the specialty hospital's care; and

(ii) include an analysis of at least the following:

(a) admissions;

(b) durations of stay;

(d) professional services performed in the specialty hospital; and

(e) if indicated, contain recommendations for changes beneficial to individuals, staff, the specialty hospital and the community.

(4) Data that the utilization review committee uses to perform the reviews shall be obtained from one or more of the following sources:

(i) individual records, both program and medical, or other appropriate specialty hospital data;

(ii) external organizations that compile statistics, design profiles, and produce other comparative data; and

(iii) cooperative endeavors with:

(a) professional standard review organization;

(b) fiscal agents;

(d) other appropriate agencies.

(5) The specialty hospital shall have at least one health and habilitation care review in progress at any given time and shall complete at least one review each calendar year.

(c) The OPWDD Independent Utilization Review Committee, or the OPWDD authorized organization, shall at least annually complete an independent utilization review of each individual at the specialty hospital, or sooner when clinically indicated and requested by OPWDD.

(1) Each specialty hospital facility shall provide the information required for the OPWDD Independent Utilization Review Committee review on forms and in the format prescribed by the OPWDD and within the OPWDD prescribed timeframes.

(2) More frequent OPWDD Independent Utilization Committee reviews may be performed as determined by the OPWDD. Each specialty hospital shall provide information required by these reviews in the manner prescribed by the OPWDD and within the OPWDD prescribed timeframes.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.10 Reserved

(a) No individual who resides in a specialty hospital shall be deprived of any civil or legal right guaranteed to all citizens solely because of a diagnosis of developmental disability. All individuals shall be given the respect and dignity that is extended to every person regardless of race, religion, national origin, creed, sex, ethnic background or disability.

(b) The specialty hospital shall protect the rights of each individual as prescribed by the commissioner and regulations of OPWDD.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.11 Physical environment

(a) Issuance of an operating certificate by the OPWDD shall be dependent upon the facility meeting environmental standards prescribed by the Department of Health for medical treatment and health-related services which are provided to individuals whether or not they have a developmental disability.

(b) A waiver may be obtained from the OPWDD for requirements of medical and health-related services which are not appropriate to the individuals served or are provided through a contractual agreement by another agency.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.12 Rate setting and financial reporting

(a) Rates of payments made for specialty hospital services rendered to Social Security Act Title XIX (Medicaid) recipients shall be at the levels set forth in the approved New York Medicaid State Plan. The rates shall be contingent upon federal financial participation (FFP) and approval.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 680.14 Deleted

(a) Definitions

(1) "Fully Vaccinated" means that 14 days or more have passed since the person received either the second dose of vaccine in a 2-dose series or a single dose vaccine.

(2) "Personnel" shall mean all persons employed or affiliated with a Specialty Hospital, whether paid or unpaid.

(3) "Specialty Hospital" means a facility operated or certified by OPWDD as defined by 14 NYCRR § 680.13(be) and which is governed by 14 NYCRR Part 680.

(b) COVID-19 Vaccination Requirements

(1) All Specialty Hospitals shall develop policies to require all personnel to be fully vaccinated against COVID-19 and to verify such vaccination. Unless otherwise specified by OPWDD o rDOH, documentation of vaccination must include the manufacturer, lot number(s), date(s) of vaccination; and vaccinator or vaccine clinic site. The following may be accepted as documentation of vaccination:

(i) CDC Vaccine Card;

(ii) a WHO Yellow Card;

(iii) documentation of COVID-19 vaccination from a health care provider; or

(iv) a digital record, such as the New York State Excelsior Pass, that includes a Quick Response (QR) code which, when scanned by a SMART Health Card reader, displays to the reader client name, date of birth, vaccine dates and vaccine type.

(2) All personnel of a Specialty Hospital, unless appropriately exempted as described herein, must receive the full COVID-19 vaccination to protect against the transmission and spread of COVID-19 with a first dose received by November 1, 2021.

(i) Personnel may receive any of the vaccines authorized for emergency use and/or approved by the federal Food and Drug Administration or listed by the World Health Organization for inoculation against COVID-19.

(ii) Specialty Hospitals shall require personnel to produce documentation sufficient to show that the person is fully vaccinated as defined above.

(3) Personnel hired or retained after November 1, 2021 must receive the first dose of their COVID 19 vaccination within two weeks after commencing employment with any Specialty Hospital.

(4) Specialty Hospitals shall be required to obtain proof of any relevant COVID-19 booster injections.

(1) In order to permit an exemption from the vaccination requirements of this section, the employee or volunteer shall have documentation of a legally recognizable exemption, including but not limited to:

(i) A signed, completed medical exemption form approved by the DOH or OPWDD from a physician licensed to practice medicine in New York State certifying that immunization will be detrimental to the employee's health, containing sufficient information to identify a medical contraindication to the COVID-19 vaccination. A completed medical exemption form must be reissued periodically, but at least annually.

(d) Testing for COVID-19

(1) All Specialty Hospitals whose personnel who have not been fully vaccinated because they have received a reasonable accommodation consistent with subdivision (c) of this section or because they are not yet fully vaccinated consistent with subdivision (b)(3) of this section shall ensure that each such individual receives diagnostic screening for COVID-19 by either rapid (antigen) or PCR (molecular) testing at least once weekly. Documentation of testing results must be provided to and maintained by the Specialty Hospital.

(2) Personnel that are not fully vaccinated and who refuse to undergo diagnostic screening testing must not be permitted to report to work.

(e) OPWDD will enforce this mandate as part of its oversight activities in accordance with the authority set forth in Mental Hygiene Law section 16.11.

History

Adopted New York State Register October 5, 2022/Volume XLIV, Issue 40, eff. 10/5/2022

Part 681 Intermediate Care Facilities for Individuals with Intellectual Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 681.1 Background and intent

(a) Upon the effective date of this section [March 15, 1989], OPWDD (see glossary, section 681.13 of this Part) will utilize the requirements contained in 42 CFR 483, 42 CFR 456 and Parts 624 and 633 of this Title as the primary basis for issuing an operating certificate pursuant to article 16 of the Mental Hygiene Law in the class of facility known as intermediate care facility for individuals with intellectual disabilities. Where CFR 483 is more restrictive than Part 624 or 633, it shall be controlling.

(b) The Federal requirements referenced in subdivision (a) of this section are section 42 CFR 483 as published in the June 3 edition of the Federal Register (vol. 53, pages 20494-20505) and section 42 CFR 456, Utilization Control for Intermediate Care Facilities; 46 CFR (page 48561) published October 1, 1981 and as amended at 50 CFR (page 33034) published August 16, 1985. They are available from the United States Government Printing Office, Superintendent of Documents, Washington, DC 20402.

(c) The Federal requirements referenced in subdivision (a) of this section are also available and may be reviewed in person during regular business hours at the:

(1) New York State Department of State, 99 Washington Avenue, Albany, NY 12231; or by appointment at the:

(2) New York State Office for People with Developmental Disabilities, Public Information Office, 44 Holland Avenue, Albany, NY 12229.

(d) Additional requirements deemed to be necessary by OPWDD for this class of facility are contained in this Part and/or in other general regulations of the commissioner which are applicable to all classes of facility.

(e) Conformance with the Federal and State standards referenced herein shall be verified through periodic surveys by OPWDD in accordance with 42 CFR 442.30 and the Mental Hygiene Law. The Federal requirement referenced previously as section 42 CFR 442.30 as amended, is published in the June 3, 1988 edition of the Federal Register (vol. 53, page 20495). It is available from the United States Government Printing Office, Superintendent of Documents, Washington, DC 20402.

(f) Intermediate care facilities for individuals with intellectual disabilities may include Small Residential Units (SRU) constructed on State-owned land. Such SRU's while remaining institutional placements for census-counting purposes, shall be required to meet all standards mandated by this Part and shall hold a site-specific operating certificate in accordance therewith. Additional standards applicable to SRU's are found in section 681.10(b) of this Part.

(g) SRU's are limited capacity, (see glossary, section 681.13 of this Part) discrete living units designed for the purpose of providing small residential group settings. They are being considered for location on the grounds of:

(1) J.N. Adam Developmental Center;

(2) Long Island Developmental Center;

(3) Rome Developmental Center; and

(4) Sunmount Developmental Center.

Nothing here shall preclude SRU development at other State-owned property pending the appropriate approvals, nor shall anything here preclude the operation of an SRU by a voluntary agency provider.

(h) Small residential unit facilities shall be designed to provide a more normalized and less restrictive living alternative for people with developmental disabilities. Such SRU placements shall be for persons for whom a community residential placement cannot be made available in a timely manner and for whom the SRU placement provides an experience in small group living which could facilitate placement into the community at large.

(i) For SRU's not beyond the preliminary design stage as of the effective date of these amendments, OPWDD will ensure that local officials and other interested parties are formally consulted.

(j) The intent shall be to incorporate those features into the design and operation of small residential units to facilitate integration into the community at large. Thus, there shall be an effectively functioning neighborhood advisory committee.

(k) Intermediate care facilities for individuals with intellectual disabilities may include Extended Treatment Units (ETUs), operated by OPWDD. ETUs, while remaining institutional placements for census-counting purposes, shall be required to meet all standards mandated by this Part and shall hold a site-specific operating certificate in accordance therewith.

(1) ETUs are limited capacity (see glossary, section 681.99 of this Part) residential programs that may include discrete living units.

(2) ETUs shall have the following characteristics:

(a) Provide specialized residential services to individuals who:

(i) Meet criteria for admission to intermediate care facilities for individuals with intellectual disabilities;

(ii) Have co-occurring psychiatric or behavioral health disorders;

(iii) Are age twenty-one (21) or older;

(b) Promote behavioral and psychiatric stabilization;

(d) Facilitate community reintegration.

(3) All admissions to an ETU shall require the prior approval of the commissioner, or designee, and necessitate that all criteria for admission to an ETU, as specified by OPWDD, have been met.

(4) The length of stay at an ETU shall be in increments of thirty (30) days up to a maximum of six (6) months, absent approval by the commissioner for an extension of stay. Such extensions shall only be granted upon a finding by the commissioner, or designee, that there exist compelling circumstances which warrant an extension. Extensions shall only be approved in increments of thirty (30) days.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 681.2 Legal base

The following sections of the Mental Hygiene Law authorize the commissioner (see glossary, section 681.13 of this Part) of the Office for People With Developmental Disabilities to establish a separate class of operating certificate for intermediate care facilities and to establish the standards governing such facilities.

(a) Sections 13.01 and 13.07 of the Mental Hygiene Law authorize OPWDD to pursue expansion of services and develop new methods of service delivery to serve the full range of needs of people with developmental disabilities.

(b) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 16.03 of the Mental Hygiene Law prohibits any provider of service from engaging in the operation of a residential facility for the care and treatment of persons with developmental disabilities without an operating certificate issued by the commissioner.

(d) Section 16.01 of the Mental Hygiene Law authorizes the commissioner to adopt regulations establishing classes of operating certificates. Furthermore, this section authorizes the commissioner to adopt regulations establishing procedures for the issuance, amendment and renewal of operating certificates. This section also authorizes the commissioner to adopt regulations setting standards of quality and adequacy for facilities, equipment, personnel, records, services and programs pursuant to an operating certificate.

(e) Section 16.05 of the Mental Hygiene Law provides that no operating certificate shall be issued by the commissioner unless the premises, equipment, personnel, records and program are found to be adequate and appropriate to provide the services for which an operating certificate is sought; and that such services will be provided in compliance with applicable laws and regulations.

(f) Section 16.11 of the Mental Hygiene Law authorizes the commissioner or an authorized representative to conduct investigations and inspections and permit review of the facility and all its books and records.

(g) Section 16.13 of the Mental Hygiene Law requires holders of operating certificates issued by the commissioner to cooperate during such inspections by permitting review of the facility and all its books and records.

(h) Section 16.17 of the Mental Hygiene Law authorizes the commissioner to revoke, suspend or limit an operating certificate upon a finding that the certificate holder has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation.

(i) Sections 364 and 364 (a) of the Social Services Law provide that OPWDD is responsible for establishing and maintaining standards for medical care and services in facilities under its jurisdiction in accordance with cooperative arrangements with the Department of Social Services and other State agencies.

(j) Section 42 Code of Federal Regulations (CFR) 483 and 456 set forth the Federal requirements for issuance of a provider agreement for services at the intermediate care facility for individuals with intellectual disability level of care, and as per section 681.1 of this Part, are applicable to ICF.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 681.3 Issuance of operating certificate

(a) An intermediate care facility may be operated under voluntary, proprietary or public auspices.

(b) An application for an initial operating certificate or for renewal of an existing operating certificate shall be submitted in the format and subject to the review procedures, prescribed by OPWDD.

(c) Each intermediate care facility with four to fourteen beds shall be considered a community residential facility as defined in section 41.34 of the Mental Hygiene Law. Any such facilities which are new shall be located in accordance with procedures described in that section. Existing community residences which meet the requirements herein for intermediate care facilities need not repeat such procedures.

(d) An operating certificate valid for a period not to exceed three years will be issued to each intermediate care facility which complies with the requirements stated in this Part and in all other applicable State and Federal requirements.

(e) No intermediate care facility may be operated without a valid operating certificate issued to the sponsoring agency (see glossary, section 681.13 of this Part) by OPWDD.

(f) The current operating certificate shall be kept on file in the intermediate care facility and shall be shown to anyone requesting to see it.

(g) The certified capacity of the intermediate care facility shall not be exceeded at any time.

(h) The certificate holder shall obtain prior approval from OPWDD to:

(1) change the address of physical location of the intermediate care facility or utilize additional physical locations or premises or parts of premises;

(2) initiate any changes in the overall provision of services; or

(3) change the certified residential capacity of the inter mediate care facility

(i) The certificate holder shall also obtain prior approval from OPWDD to change the overall duties or qualifications of the administrator (see glossary, section 681.13 of this Part).

(j) Suspension, revocation or limitation of the operating certificate.

(1) The commissioner may revoke, suspend or limit the operating certificate upon his or her finding that an intermediate care facility has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation. The certificate holder shall be given notice and an opportunity to be heard prior to any such action.

(2) Pending a determination pursuant to the above situation, the commissioner may, upon written notice to the certificate holder, suspend the certificate for not more than 60 days upon his or her finding that the continued operation of the intermediate care facility presents an immediate danger to the health and welfare of any of the persons served therein.

(k) The certificate holder shall notify OPWDD of any intention to voluntarily terminate the operation of the intermediate care facility. This notice of intention to voluntarily terminate shall include a statement of the actions which will be taken by the certificate holder:

(1) to assure appropriate referral of persons in residence;

(2) to preserve the confidentiality of records; and

(3) to settle all outstanding debts and accounts receivable according to the preexisting individual agreements.

(l) Catastrophic termination of operation.

(1) If through a catastrophe or other circumstances beyond the agency's control, such as, but not limited to fire, flood or earthquake, the intermediate care facility is unable to operate as certified for a period of 60 days, the operating certificate shall be null and void. Such time period shall be extended upon application to, and approval from, OPWDD. Such extension shall be granted in a timely manner based on the documentation that the agency is proceeding in good faith to reinitiate operation and that satisfactory service alternatives have been provided.

(2) From the time of such catastrophe, the providers, in collaboration with the commissioner, shall be responsible for providing emergency accommodations and continuing support to all persons in residence until such time as the intermediate care facility can be made habitable or suitable alternative living accommodations can be found. Such requirement shall be contingent upon maintenance of the current reimbursement agreements.

(3) The commissioner shall be notified immediately of the occurrence of any catastrophe.

(m) No operating certificate is transferable.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 681.99 Glossary

(a) Administrator.

The person designated by the governing body to be responsible and accountable for the daily operation of the intermediate care facility. The administrator shall be:

(1) a qualified intellectual disability professional as defined in 42 CFR part 483 with a minimum of two years of administrative experience in a program for people with developmental disabilities;

(2) a person licensed by the State of New York as a nursing home administrator; or

(3) a person with at least a bachelor's degree in administration if the administrative staff of the intermediate care facility includes a person meeting the qualifications described in either paragraph (1) or (2) of this subdivision.

(b) Agency, sponsoring.

A unit of government, a voluntary agency or any other person or organization which intends to establish or operate a community residential facility for persons with developmental disabilities.

The maximum number of individuals who may reside in the intermediate care facility. This is specified on the operating certificate.

(d) Standards of certification.

Those criteria which OPWDD specifies as necessary to be met in order for an agency/facility to demonstrate that the facility can and does provide the appropriate environment to adequately address the matters of quality of care and the welfare of individuals admitted to the facility, rights, safety, and/or fiscal accountability. Surveys in community based ICF/DD's are conducted for the purpose of documenting conformity with standards of certification, and such conformance is the basis for issuing an operating certificate and/or renewing an operating certificate.

(e) Commissioner.

The Commissioner of the New York State Office for People With Developmental Disabilities.

(f) Principles of compliance.

Identified required expectations and areas of concern to be addressed by an agency/facility. This includes both philosophically based parameters of operation and administration which have emanated from experience as being relevant to the efficient and effective delivery of quality care; and those items for which OPWDD considers agencies/ facilities must be responsible, but over which they shall have discretion and flexibility as to how any administrative solution will be designed and implemented as long as it is in accordance with the applicable sections of this Part. The policies/procedures developed by the agency/facility shall reflect such solutions to achieve the principles of compliance as set forth in regulations of the commissioner. Principles of compliance are, in fact, requirements of participation as a certified facility. While OPWDD expects and assumes compliance, and reserves the right to monitor compliance at any time pursuant to the responsibilities of the commissioner under the Mental Hygiene Law, facilities will not routinely be examined against principles of compliance at surveys for recertification.

(g) Individual with the ability to give consent.

As used in section 681.13 of this Part, a person:

(1) who has not been determined to lack capacity by a court of competent jurisdiction;

(2) who is not a minor, unless married;

(3) who understands and appreciates the nature and consequences of a proposed service plan and its span of interventions, as well as a range of related treatment approaches, if such have been prepared on a contingent basis;

(4) who understands and appreciates the benefits and significant risks, and alternatives, thereto; and

(5) who can make a decision in a knowing and voluntary manner, based on the information provided.

(h) Disability, developmental. A developmental disability as defined in section 1.03 (22) of the Mental Hygiene Law.

(i) Guardian.

As used in section 681.13 of this Part, a party (or parties) appointed by a court of competent jurisdiction to make personal care decisions for an individual determined to have insufficient capacity to make said decisions for himself or herself.

(j) Actively involved.

Significant and ongoing involvement in an individual's life so as to have sufficient knowledge of the individual's needs.

(k) Actively involved adult family member.

Someone 18 years of age or older who is related to a person in a facility and who has demonstrated, in the opinion of the interdisciplinary team, significant and ongoing involvement in the individual's life, as well as sufficient knowledge of the individual's needs.

(l) Minor.

Anyone under the age of 18, unless that individual is married.

(m) OPWDD.

The Office for People With Developmental Disabilities.

(n) Person.

For purposes of this Part, a child or adult with a diagnosis of developmental disability, who has been or is being served by a State, private or voluntary operated facility certified by OPWDD. For the purposes of this Part, this shall include children or adults who have applied to or have been screened for services and for whom a clinical record is maintained or possessed by such a facility.

(o) Service plan.

That portion of an individual program plan that states an objective necessary to meet an individual's identified need(s) and the planned sequence of methods or interventions for meeting that objective. The service plan can include a span of interventions, with specific limitations, should adjustment of that plan be necessary.

(p) A service plan constitutes an untoward risk to an individual's protection or rights. As used in section 681.13 of this Part, plans, including those designed to manage inappropriate behavior, which may impact negatively upon the rights or protection afforded individuals in an ICF/DD, including, but not limited to, the use of time-out rooms, physical restraints, medication, and the application of painful or noxious stimuli. Such "risks" do not include those typically associated with participation in normal activities; or those that are reasonable, foreseeable, and appropriate in relation to a service plan.

(q) Verify.

Any means, including, but not limited to, observation, interview, and the written word that provides OPWDD with a basis for being reasonably assured that a requirement is met.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 686 Operation of Community Residences

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.1 Applicability

(a) This Part applies to all facilities in the community residence class that are certified by the Office for People With Developmental Disabilities, hereinafter referred to as OPWDD (see glossary, section 686.99 of this Part).

(b) In every instance in this Part, the terms, people, person/persons, or individual/individuals shall refer to those who have met the admission criteria for a community residence and who have been admitted.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.3 General purpose

(a) Principles of compliance.

(1) A community residence shall provide an environment that ensures individual's rights, promotes freedom of movement, and increases opportunities for individuals to make decisions and to participate in regular community activities consistent with their needs and capability. A community residence shall allow for the maximum level of independence consistent with an individual's disability and functional level.

(2) A community residence shall be a home for individuals that is safe, comfortable and clean.

(3) A community residence, through both staff and individual activities, shall endeavor to become an integral part of the neighborhood and community. Individuals of a community residence shall be encouraged to become participating members of the community in which they live. Accordingly, community residence staff are responsible for facilitating access to the appropriate community resources. The range of opportunities shall be sufficiently variable to meet the needs and interests of all individuals, and, wherever possible, utilize the same community resources as used by persons who do not have disabilities.

(4) Individuals of a community residence are to be integrated into a total service system. Community residences exist within a continuum of residential opportunities for persons who have a diagnosis of developmental disability (see glossary, section 686.99 of this Part). Being part of a continuum allows individuals to access alternative levels of care as their needs change.

(5) Except as provided in paragraph (6) of this subdivision, a community residence shall be issued an operating certificate that indicates the maximum certified capacity (see glossary, section 686.99 of this Part) as follows:

(i) A supervised community residence shall be issued an operating certificate for no more than 14 individuals. The certified capacity shall not be exceeded without notification within 24 hours to OPWDD, at which time the conditions relative to the temporary increase in capacity shall be discussed and agreement reached.

(ii) A supportive community residence shall be issued an operating certificate for no more than four individuals, and shall be certified on an address-specific basis. The certified capacity shall not be exceeded without the prior approval of OPWDD.

(6) A community residence which, on the effective date of this Part, has a certified capacity in excess of those stated in paragraph (5) of this subdivision shall continue to be issued an operating certificate for that capacity pursuant to this Part, provided that the community residence is in compliance with this Part. The certified capacity shall not be exceeded without the prior approval of OPWDD.

(b) Standards of certification.

There are no standards of certification.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.4 Legal base

The following sections of the Mental Hygiene Law authorize the commissioner to establish a separate class of operating certificate for community residences and to establish the standards governing such facilities.

(b) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under his or her jurisdiction.

(c) Article 16 sets forth provisions enabling the commissioner of the OPWDD to regulate and assure the consistent high quality of services provided within the State to citizens with developmental disabilities. The commissioner may adopt and promulgate any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by this article.

(d) Section 16.03 of the Mental Hygiene Law prohibits any provider of service from engaging in the operation of a residential facility for the care, custody and treatment of people with developmental disabilities without an operating certificate issued by the commissioner.

(g) Section 16.13 of the Mental Hygiene Law requires holders of operating certificates issued by the commissioner to cooperate during inspections by permitting review of the facility and all its books and records.

(h) Section 16.17 of the Mental Hygiene Law authorizes the commissioner to revoke, suspend, or limit an operating certificate upon a finding that the certificate holder has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation. This section also authorizes the commissioner to temporarily suspend or limit an operating certificate following a finding that a person's health or safety is in imminent danger or there exists any condition or practice or a continuing pattern of conditions or practices which poses imminent danger to the health or safety of any individual.

(i) Section 41.36 of the Mental Hygiene Law authorizes the commissioner to establish rules and regulations governing reimbursement and funding of community residential facilities.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.5 Governance

(a) Principles of compliance.

(1) Each agency operating one or more community residences shall have a governing body (see glossary, section 686.99 of this Part).

(2) Unless a governing body is broadly representative of the community (see glossary, section 686.99 of this Part) in which a community residence is located, the agency shall have a community advisory board composed of at least residents of the neighborhood in which the residences are located and persons from the community residences. As a matter of State policy, all OPWDD-operated community residences shall have at least an agency-wide community advisory board. A community advisory board shall have at least the following functions:

(i) to organize itself, elect officers and direct its activities;

(ii) to advise the residence managers and the governing body with regard to the operation of the community residences;

(iii) to assist persons living in the community residences to be integrated into the community in which the facilities are located;

(iv) to assist neighborhoods to accept the persons living in the community residences as neighbors; and

(v) to have advisory responsibilities during at least the first full year of operation of the community residence.

(b) Standards of certification.

(1) When a community advisory board is required, there is verification (see glossary, section 686.99 of this Part) that the membership includes at least one party who is a resident of a neighborhood in which a facility is located and one person who lives in a community residence.

(2) There is evidence that, if applicable, there is either an agency-wide or site specific community advisory board in operation during at least the facility's first year of operation.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.6 Administration

(a) Principles of compliance.

(1) Each supervised community residence shall have a residence manager who is appointed in accordance with agency/facility personnel policies and who, at a minimum, has been awarded a high school diploma or its equivalent and has one year of employment experience (see glossary, section 686.99 of this Part) with persons with developmental disabilities.

(i) The residence manager shall be responsible for the continuous direction and day-to-day operation of that residence.

(ii) Pursuant to agency/facility policy, the residence manager may be designated as the person responsible for the coordination of a person's plan of services (see glossary, section 686.99 of this Part). If the residence manager is not the designated coordinator, another staff person shall be designated as having that responsibility.

(2) Each community residence shall develop and implement policies/procedures which address, at a minimum:

(i) Admission, including at least:

(a) The process to determine an applicant's need for service, the ability of the facility to meet the ongoing needs of the individual, and consideration of the relevance of the family intactness and geographic proximity of the family.

(b) The requirement that staff and the applicant participate in the above process, including the final determination as to the applicant's admission.

(d) The applicant criteria, in functional terms for admission.

(e) The requirement that, to determine that an applicant meets the criteria prior to admission, it is necessary that the following information be reviewed:

(1) the results of a medical/physical examination conducted within 90 days prior to the review; and

(2) an assessment (see glossary, section 686.99 of this Part) or assessments of an applicant's strengths, needs (see glossary), interests and living skills completed within 90 days prior to the review.

(f) The requirement that, no person shall be admitted over his or her objection, except by a court order.

(g) The requirement that no person shall be excluded from a residence on the basis of race, religion, color, age, gender, national origin, or inability to pay for services. This shall not preclude a facility from establishing specific admission criteria that limit the range of the age or level of disability of the individuals, or their gender when necessitated by the overall objective of the facility.

(h) The requirement that each applicant, or parent, guardian or correspondent (see glossary, section 686.99 of this Part) as available, is informed in writing prior to admission and as changes occur of any charges (see section 686.12 of this Part) and the supplies and services provided by the facility (see section 686.13 of this Part), unless the applicant is a capable adult (see glossary) and objects to such notification to others.

(ii) Discharge, including at least:

(a) The criteria for discharge of individuals.

(b) The requirement that, to avoid precipitous discharge, reasonable efforts are made on the part of the community residence to meet the needs of a person before a more restrictive placement is sought and/or discharge is contemplated, taking into consideration the needs of the other individuals in the facility and the facility's available resources.

(c) The procedures for being discharged, including the procedures governing discharge of a person against the recommendations of the program planning team (see glossary, section 686.99 of this Part).

(d) The requirement that no overt or covert physical or psychological pressure shall be applied to prevent a person who desires to leave from doing so.

(e) The requirement that those responsible for program planning participate in designing plans and the coordination of services for a person in the process of being discharged from the residence.

(iii) Review and appeal procedures available to individuals and their parents, guardians, or correspondents, including but not limited to appeal of the plan of services and placement decisions, which are in conformance with the regulations of the commissioner.

(iv) Community involvement, providing direction to staff and individuals as to the type of activities that will promote and nurture the involvement of the community residence with the neighborhood and community.

(v) The means whereby individuals, in accordance with their capability, contribute to the decisionmaking process relative to the day-to-day activities at the community residence, and individual/staff involvement in neighborhood/community activities.

(vi) Requirements for the administration of the following:

(a) plans of services;

(b) person's financial records;

(d) coordination, collection, release and tracking of statistical information;

(e) incidents and allegations of abuse; and

(f) medication administration, the current certification status of community residence staff to administer medications, and the self-administration of medication training program for individuals.

(vii) Medical emergencies, other potential emergencies, evacuation procedures to meet the special needs of persons with developmental disabilities, and disasters; the necessary staff actions associated with these situations; and the means to familiarize staff with these policies and procedures.

(viii) Health and safety issues.

(ix) Personnel policies/procedures addressing at least:

(a) the recruitment and hiring process; qualifications, education and skills required; job descriptions; description of duties and responsibilities; and job performance evaluations;

(b) staff training programs which include at a minimum:

(1) coordination of staff development and training that is consistent with individuals' and staff needs and agency/facility policies;

(2) orientation procedures;

(3) in-service training; and

(4) the use of community training resources;

(d) the prohibition of discrimination in hiring and promotion based on race, religion, color, gender, national origin, age or disability.

(x) The approval process for policies/procedures, which includes a description of the role of the governing body in this process.

(3) The agency/facility policy/procedure manual is a public document and, as such, shall be available to individuals, parents, guardians, correspondents, staff and others.

(b) Standards of certification.

(1) The agency/facility has written criteria for a residence manager which mandate that the person in the position has, at a minimum, been awarded a high school diploma or its equivalent and has at least one year of experience working with persons with developmental disabilities.

(2) The agency's personnel file for the residence manager contains documentation that the person in that position meets at least the minimum requirements as specified by agency/facility criteria for that position.

(3) A written policy/procedure manual(s) exists with contents addressing the following areas:

(i) admission and discharge of individuals;

(ii) administration of records;

(iii) emergencies and disasters;

(iv) health and safety issues;

(v) personnel;

(vi) review and appeal procedures for concerns of individuals and their correspondents;

(vii) community involvement of staff and individuals; and

(viii) individuals' involvement in community residence activities.

(4) Documentation exists indicating that at the time of admission, each individual and a parent, guardian or correspondent as available, was informed in writing of any charges which might be made and the supplies and services provided by the facility. The exception to notifications to others is when a capable adult objects to such notification.

(5) If changes in charges or supplies and services have occurred since The last survey, OPWDD shall verify this information was provided in writing to the individual, and a parent, guardian or correspondent, unless a capable adult objects to such notification.

(6) OPWDD shall verify that the facility has conducted new staff orientation and an annual review thereafter for all personnel assigned to the facility of the emergency procedures.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.7 Program for supervised community residences

(a) Principles of compliance.

(1) Supervised and supportive community residences shall provide a plan of services developed and delivered in accordance with the requirements of Part 671 of this Title.

(2) Admission to a supervised residence shall be based primarily on the applicant having a diagnosis of a developmental disability (see glossary, section 686.99 of this Part) and that his/her need for supervision and services can adequately be met.

(3) Clinical services delivered by appropriately qualified parties, including assessment, direct service, and the supervision and training of others providing services oversight at the residence, shall be provided in accordance with each person's need. Such services also include, but are not limited to, determining the appropriateness of admission and continued need for service, and providing service delivery at the residence. Clinical services delivered directly by the residence are limited to those provided by parties in the professional titles identified in section 686.13 of this Part. Nothing herein shall be taken to preclude person's accessing additional clinical services outside the residence either through their day program or any other appropriately qualified provider.

(b) Standards of certification.

(1) OPWDD shall verify that additional written assessments, identified by those responsible for program planning, have been obtained.

(2) OPWDD shall verify that staff involved in planning a person's program understand why the specific person outcomes were determined to be the most appropriate to address the person's identified needs at this time.

(3) OPWDD shall verify that the plan of services, on an overall basis, is being implemented as developed.

(4) OPWDD shall verify that the staff in the community residence having program and/or supervision responsibilities for a specific person know what their role and/or responsibilities are in carrying out the person's plan of services.

(5) OPWDD shall verify that at least annually there is a review, and recommendations are made on the following:

(i) that the current residential placement is appropriate to the person;

(ii) that the description of the person's general program activities in and out of the residence and the person's participation in those activities reflects the needs and interests of the person; and

(iii) that the level of the person's participation in the neighborhood/community activities is consistent with the person's needs and interests.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.9 Staffing

(a) Principles of compliance.

(1) Personnel shall be available to supervise, operate and maintain the premises of a community residence in compliance with all applicable requirements.

(2) There shall be a staffing plan based upon such considerations as the number of individuals and their levels of functioning and need, support staff requirements, and physical plant demands.

(3) The community residence can make use of volunteers in any area where they may directly or indirectly enhance opportunities for the personal development and the quality of life for the persons living in the residence. However, volunteers shall not be substituted for paid personnel necessary to operate the residence in accordance with this Part. Family members and friends of persons living in the residence will not be considered volunteers for planning purposes.

(4) In addition, in a supervised community residence, staff availability is required at all times when individuals are present. However, arrangements at the site for less intensive supervisory coverage are permissible. These arrangements shall be based on an assessment of a given individual's specific ability to assume responsibility for herself or himself as documented in the plan of services and determined to be appropriate for that individual.

(b) Standards of certification.

(1) A written staffing schedule exists at the site, which indicates that for the individuals supervision is available or on call 24 hours a day.

(2) There is a written plan for the utilization of volunteers (not to include family members or friends of persons living in the residence), if the community residence makes use of volunteers.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.14 Recordkeeping

(a) Principles of compliance.

(1) The community residence shall maintain a record for each person.

(2) The record of a discharged person shall contain a summary of the person's status at the time of discharge, the rationale for discharge, and the discharge plan.

(3) Individuals' personal allowance records shall be maintained in conformance with the regulations of the commissioner.

(4) A personnel record for each staff member shall be maintained in accordance with the agency/facility policies/procedures. The personnel records for staff may be kept at a centrally located place in accordance with agency/facility policies/procedures.

(5) The community residence shall maintain the necessary statistical records relating to the operation of the facility in accordance with agency/facility policies/procedures.

(6) The community residence shall submit information and reports to OPWDD in the format and manner prescribed by OPWDD.

(b) Standards of certification.

(1) The following written information is available for each person in the supervised community residence:

(i) personal identification information which is current, including family information and the responsible party to notify in case of an emergency;

(ii) admission information including the person's medical and developmental history;

(iii) a current developmental disability profile (DDP);

(iv) the recording of illness or injury, including the date and time of occurrence, and action taken, and the appropriate notification made regarding each, during the past year.

(2) There are written policies/procedures for the outdated person-specific material not currently being used for program development, delivery of service, or monitoring of a person's status.

(3) The personnel records for each staff member shall be maintained by the agency/facility at the location specified in agency/facility policy.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.16 Certification of the facility class known as individualized residential alternative

(a) Principles of compliance.

(1) In addition to the facilities in the community residence class known as supervised community residences and supportive community residences, there shall be a class of facility known as an individualized residential alternative.

(2) A facility in this class housing nine or more persons shall meet the physical plant, Life Safety Code and environmental requirements for supervised community residences listed in sections 635-7.1, 635-7.2 and 635-7.3 of this Title.

(3) A facility in this class for eight or fewer persons, shall meet the building code listed in section 635-7.1(h)(1)(ii) of this Title or for New York City in section 635-7.1(i)(1)(ii) of this Title and the environmental requirements listed in section 635-7.4(b)(3) of this Title. Additionally, if the occupants of such facility cannot be evacuated to either a point of safety or the exterior in three minutes or less, the facility shall meet the Life Safety Code requirements listed in section 635-7.2(a)(1)(iii) of this Title.

(4) An individualized residential alternative shall meet the requirements of this Part as set forth in sections 686.1, 686.2, 686.3, 686.4, 686.5, 686.9, 686.15(a)(1)-(3) (as appropriate) and 686.16 of this Part.

(5) Each facility in this class shall ensure the provision of, or provide as its minimum responsibility, protective oversight (see glossary) appropriate to the person's needs.

(6) A facility receiving an operating certificate as an individualized residential alternative, shall develop a site specific written plan for protective oversight. The plan shall include provisions for ensuring:

(i) The assessment of each person's need for the amount and type of supervision necessary including both staff and/or technology as appropriate to the person and circumstance.

(ii) The use of appropriately trained substitute personnel when the primary assigned personnel are unavailable.

(iii) The establishment of qualifications and training requirements of those responsible for supervision.

(iv) The establishment of a process whereby the person's continuing need for the originally recommended amount and type of protective oversight can be periodically reviewed, and modified as necessary.

(7) For the purposes of compliance with site selection requirements, the provisions of section 41.34 of the Mental Hygiene Law shall apply to a facility certified as an individualized residential alternative as follows:

(i) Facilities of 4-14 beds where on-site supervision is provided.

(ii) Facilities of 1-3 beds where on-site 24-hour per day supervision is provided.

(b) Standards of certification.

(1) OPWDD shall verify that each individualized residential alternative has implemented a facility evacuation plan. OPWDD shall verify that staff and persons residing in the facility are trained and evaluated regarding their performance of said plan.

(2) For individualized residential alternatives of eight or fewer beds, OPWDD shall verify that each person's individualized services plan (see glossary) contains a current evaluation of the fire evacuation capacity of the person based on actual performance. OPWDD shall verify the accuracy of the information in each person's individualized services plan relative to fire evacuation performance.

(3) OPWDD shall verify that each person has a plan for protective oversight, based on an analysis of the person's need for same, and that such need has periodically, but at least annually, been reviewed, revised as appropriate, and integrated, as appropriate, with other services received.

(4) OPWDD shall verify that persons living in the facility are receiving appropriate protective oversight in accordance with the following:

(i) any parties with supervision responsibilities have received training appropriate to the protective oversight needs of the persons in the facility including, but not limited to, first aid;

(ii) any parties with supervision responsibilities are aware of the specifics of each person's plan for protective oversight; and

(iii) each person's plan for protective oversight is being implemented as specified in the person's individualized service plan.

(5) OPWDD shall verify, in facilities of eight beds or less that the alarms of fire detectors installed pursuant to section 635-7.4(b)(3)(v) of this Title are clearly audible in sleeping areas with intervening doors closed.

History

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 686.17 Food stamp benefits

(a) Applicability.

This section applies to non-profit organizations and governmental entities (other than OPWDD) with an OPWDD - issued operating certificate to operate an IRA or community residence of 16 or fewer beds, and to all individuals living in IRAs or community residences of 16 or fewer beds operated by non-profit organizations or governmental entities (other than OPWDD).

(b) Applying for food stamp benefits.

(1) The provider shall apply for food stamp benefits for each individual for whom an application for food stamp benefits has not already been made, unless:

(i) the individual is capable of independently managing money and does not allow the provider to apply for food stamp benefits; or

(ii) the individual and provider agree that the individual will pay for, obtain and prepare all of his or her own food; or

(iii) the individual pays the provider the specified amount for food.

(a) Effective October 1, 2010, the individual shall pay the provider $200 per month.

(b) For the period November 1, 2013 to December 31, 2013, the amount that the individual is required to pay to the provider for food is reduced by $11 per month. The provider shall reimburse any individual for any amount the individual paid in excess of $189 per month for the period November 1, 2013 to December 31, 2013.

(d) Effective January 1, 2015, the individual shall pay the provider $194 per month.

(e) Effective January 1, 2018 through December 31, 2018, the individual shall pay the provider $191.50 per month. Effective January 1, 2019, the individual shall pay the provider $192 per month.

(2) Each individual capable of independently managing money, and for whom an application for food stamp benefits has not already been made, shall apply for food stamp benefits unless:

(i) the individual allows the provider to apply on his or her behalf; or

(ii) the individual and provider agree that the individual will pay for, obtain and prepare all of his or her own food; or

(iii) the individual pays the provider for food as specified in this subparagraph.

(a) Effective October 1, 2010, the individual shall pay the provider $200 per month.

(d) Effective January 1, 2015, the individual shall pay the provider $194 per month.

(e) Effective January 1, 2018 through December 31, 2018, the individual shall pay the provider $191.50 per month. Effective January 1, 2019, the individual shall pay the provider $192 per month.

(1) As used in this section maintain eligibility for food stamp benefits means recertifying eligibility for food stamp benefits, providing information for purposes of determining and verifying eligibility for food stamp benefits and otherwise cooperating with Federal, State and local government agencies in the administration of the food stamp program. It does not mean refusing employment, public benefits, gifts or receipt of other income or assets which would make the individual ineligible for food stamp benefits.

(2) The provider shall maintain eligibility for food stamp benefits for each individual for whom the provider has applied for such benefits.

(3) Each individual for whom the provider has not applied for food stamp benefits must maintain his or her eligibility for food stamp benefits, or allow the provider to maintain eligibility and give the provider whatever information is needed to do so.

(d) Redeeming food stamp benefits or paying for food.

(1) The provider may obtain and redeem food stamp benefits for each individual for whom the provider applied for such benefits.

(2) Each individual for whom the provider has not applied for food stamp benefits must either:

(i) allow the provider to obtain and redeem his or her food stamp benefits; or

(ii) if the provider agrees, pay for, obtain and prepare all of his or her own food; or

(iii) if the provider requests, pay the provider for food as follows:

(a) if the individual receives food stamp benefits, the individual must pay an amount equal to the food stamp benefits the individual receives;

(b) if the individual does not allow the provider to apply for food stamp benefits, does not make his or her own application or maintain his or her own eligibility for food stamp benefits, and does not present documentation of an inability to pay the required amount, the individual must pay the provider as specified in this clause;

(1) Effective October 1, 2010, the individual shall pay the provider $200 per month for food.

(2) For the period November 1, 2013 to December 31, 2013, the amount that the individual is required to pay to the provider for food is reduced by $11 per month. The provider shall reimburse any individual for any amount the individual paid in excess of $189 per month for the period November 1, 2013 to December 31, 2013.

(3) Effective January 1, 2014, the individual shall pay the provider $189 per month for food.

(4) Effective January 1, 2015, the individual shall pay the provider $194 per month.

(5) Effective January 1, 2018 through December 31, 2018, the individual shall pay the provider $191.50 per month. Eff ective Janu- ary 1, 2019, the individual shall pay the provider $192 per month.

(c) if the application for food stamp benefits for the individual was denied, or if the individual presents documentation that he or she cannot pay the required amount, the individual shall pay an amount he or she is able to pay;

(d) if the individual and the provider agree upon a reduced amount, the individual must pay the agreed-upon reduced amount for food and/or allow the provider to obtain and redeem the agreed-upon amount of the individual's food stamp benefits.

(e) The provider may not unreasonably withhold agreement to an arrangement whereby an individual pays for, obtains and prepares his or her own food. The provider shall base a decision on whether to agree to such an arrangement on the best interests and needs of the individual in accordance with his or her plan of services, and may not base such a decision on the provider's convenience or finances.

(f) The provider shall not decrease the amount of money it gives an individual for food purchases, whether from the individual's food stamp benefits or otherwise, or change any arrangement with the individual whereby the individual purchases or prepares some of his or her food or meals, unless such change is based on the individual's best interests and needs in accordance with his or her plan of services.

(g) A provider may not discharge an individual from a residence or deny an individual admission to a residence because of failure to pay for food or because of OPWDD's failure to grant an appeal pursuant to section 686.13(i)(1)(vii) of this Part.

(h) A provider's obligation to provide for the nutritional needs of a person as set forth in sections 633.4(a)(4) and 635-9.1(a)(1)(x) of this Title is not diminished or altered because of an individual's receipt or lack of receipt of food stamp benefits or because of fluctuations in the amount of food stamp benefits.

History

Amended, New York State Register, Volume XXXVI, Issue 12, effective 3/26/2014

Part 687 Family Care Homes for People With Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.1 Applicability

(a) This Part shall apply to all state sponsored and agency sponsored family care homes (see section 687.99 of this Part) operating or to be operated under an operating certificate (see section 687.99 of this Part) obtained from the Office for People With Developmental Disabilities (hereinafter referred to as OPWDD; see section 687.99 of this Part).

(b) This Part sets forth specific minimum requirements with which an OPWDD certified family care home must comply. This is in addition to any other regulations issued by OPWDD and designated as applicable to family care homes and/or their sponsoring agencies (see section 687.99 of this Part).

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.2 Background and intent

(a) The family care program (see section 687.99 of this Part) has been developed to make it possible for a certified family care provider to care for an individual or individuals in the provider's own home, thus providing a family-oriented, home-like environment.

(b) Family care placement is available, in accordance with processes established by OPWDD, to those individuals with intellectual and/or developmental disabilities who do not need residential care and treatment in a more restrictive, structured setting, but who are unable to function adequately in their own homes or for whom the family-oriented environment is more appropriate than other available community settings or independent community living arrangements.

(c) Family care placement should be seen, not only for the purpose of providing a place of residence, but also as contributing to the overall personal development process of the individual(s).

(d) In all cases, a family care home shall provide a residential environment that approximates, as closely as possible, a family setting which enables and encourages individuals to participate in family and community life on an equal status with other members of the household. Thus, one of the primary goals of a family care placement is the acceptance of a person as a full member of the household so as to share in that household's pleasures and responsibilities.

(e) Exceptions to the provisions of this Part, other than statutory requirements, may be made by the commissioner (see section 687.99 of this Part) when it is determined that an exception is necessary and in the best interest of an individual(s) and is consistent with the health, safety and welfare of the individual(s).

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.3 Statutory authority

(a) Article 16 of the Mental Hygiene Law sets forth the requirements for the certification and recertification of various classes of facilities, including family care homes.

(b) Section 131-o of the Social Services Law sets forth certain applicable requirements for the maintenance of personal allowance accounts (see section 687.99 of this Part and Part 633 of this Title) for individuals residing in family care homes who receive State-supplemented SSI.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.4 Certification and recertification

(a) General provisions.

(1) No provider of services shall engage in the operation of a family care home without an operating certificate issued by the commissioner.

(2) The operation of a family care home shall be in accordance with the terms of the operating certificate, the regulations of the commissioner, and any other applicable statute or regulation.

(3) Any family care home operator who knowingly fails to comply with any applicable statute shall be guilty of a misdemeanor.

(4) Operating certificates shall be valid up to a three-year period, at the discretion of OPWDD, as shall be expressly provided upon such certificate or renewal thereof.

(5) No application fee shall be required for an application for issuance or renewal of an operating certificate.

(6) Operating certificates are not transferable to other persons or locations.

(7) An operating certificate of a family care provider shall be revoked upon a finding by OPWDD that any individual to whom an operating certificate has been issued has been convicted of a class A, B or C felony.

(8) The certified capacity (see section 687.99 of this Part) of the family care home shall be stated on the operating certificate and shall not be exceeded.

(b) Certification.

(1) Application for an operating certificate shall be made upon the forms and in the format prescribed by OPWDD.

(2) Application shall be made by the party or parties responsible for operation of the family care home.

(3) Operating certificates shall be issued only to natural persons age 21 or older, and corporations for profit shall not be formed under the Business Corporation Law for any such purpose.

(4) Applications shall be in writing, shall be verified and shall contain such information as is required by OPWDD. The application process shall reflect the requirements of sections 633.5, 633.22, and 633.24 of this Title.

(5) The application process shall include a request by the sponsoring agency that the Justice Center for the Protection of People with Special Needs (Justice Center) check the Staff Exclusion List (SEL) for the family care provider and all parties age 18 and older who are to reside in the family care home (except for individuals receiving family care services).

(6) The application process shall also include a request by the sponsoring agency that the Justice Center conduct a criminal history record check for the family care provider and all parties age 18 years and older who are to reside in the family care home (except for individuals receiving family care services). (See section 633.22 of this Title for requirements and procedures.)

(7) The application process shall include a request by the sponsoring agency to the Statewide Central Register of Child Abuse and Maltreatment (SCR) as to whether the family care provider and all parties age 18 years and older (except for individuals receiving family care services) who are to reside in the family care home are the subject of an indicated report of child abuse or maltreatment.

(8) No operating certificate shall be issued by the commissioner unless there is satisfaction as to:

(i) the need for the family care home;

(ii) the character, competence and standing in the community of the party or parties responsible for operating the family care home;

(iii) the adequacy of the financial resources of the applicant and the stability of sources of future revenues;

(iv) the adequacy of the premises, equipment and applicant to provide the services which would be authorized by the operating certificate;

(v) the adequacy of arrangements made with other providers of services for the provision of health, habilitation, day programs, education, sheltered workshop, transportation or other services as may be necessary and appropriate to meet the needs of individuals who will reside in the family care home;

(vi) the review of any criminal history record information received concerning the family care provider and all parties age 18 years and older who are to reside in the family care home, except for individuals receiving family care services;

(vii) the review of any information received from the Justice Center as a result of the SEL check(s);

(viii) the review of any information received as a result of the SCR check(s); and

(ix) such other matters as the commissioner shall deem pertinent in the public interest.

(9) The commissioner may disapprove an application for an operating certificate, may authorize fewer services than applied for, and may place limitations or conditions on the operating certificate, including but not limited to compliance with a time-limited plan of correction of any deficiency which does not threaten the health or well-being of any individual. In such cases the applicant shall be given an opportunity to be heard at a public hearing if he or she so requests.

(10) The commissioner shall specify on each operating certificate the kind or kinds of services authorized, any limitations or conditions of the certificate and the expiration date of the certificate.

(11) Except as provided in paragraph (12) of this subdivision, no family care home shall be issued an operating certificate for the purpose of providing suitable care therein to more than four individuals receiving services.

(12) Any provider of services providing family care to five or more individuals on the effective date of this regulation may be recertified as a family care home at the provider's approved capacity on the date of recertification pursuant to the provisions of this Part, provided that such provider fulfills all requirements of this Part except for the number of individuals receiving services . In such cases, upon the discharge or death of an individual residing in the home, the certified capacity of the home will be reduced, on each occasion, until the capacity is reduced to a maximum of four.

(1) No operating certificate shall be renewed by the commissioner unless there is satisfaction as to:

(i) the adequacy of the financial resources of the applicant and the stability of sources of future revenues;

(ii) the adequacy of the premises, equipment and applicant to provide the services which would be authorized by the operating certificate;

(iii) the adequacy of arrangements made with other providers of services for the provision of health, habilitation, day services, education, transportation or other services as may be necessary and appropriate to meet the needs of individuals who will reside in the family care home;

(iv) the review of any criminal history record information received from a criminal history record check, if one had not been previously conducted, concerning:

(a) the family care provider; and

(b) all parties age 18 years or older residing in the family care home (except for individuals receiving family care services); and

(v) such other matters as the commissioner shall deem pertinent in the public interest.

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.5 Suspension, revocation or limitation of an operating certificate

(a) The commissioner may revoke, suspend or limit an operating certificate or impose penalties upon a determination that the family care provider named on the certificate has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation. The family care provider shall be given notice and an opportunity to be heard pursuant to section 16.17 of the Mental Hygiene Law and applicable regulations of the commissioner prior to any such determination.

(b) A certificate may be temporarily suspended or limited without a hearing for a period not in excess of 60 days upon written notice to the family care provider following a finding by OPWDD that an individual's health or safety is in imminent danger or there exists any condition or practice or a continuing pattern of conditions or practices which poses imminent danger to the health or safety of any individual. Upon such finding and notice, the power of the commissioner to temporarily suspend or limit an operating certificate shall include, but shall not be limited to:

(1) prohibit or limit the placement of new individuals in the family care home;

(2) remove or cause to be removed some or all of the individuals in the family care home; or

(3) suspend or limit or cause to be suspended or limited the payment of any governmental funds to the family care home, provided that such action shall not in any way jeopardize the health, safety and welfare of any individual residing in the family care home.

(c) At any time subsequent to the suspension or limitation of any operating certificate where said suspension or limitation is the result of correctable physical plant or program deficiencies, the family care provider may request OPWDD to reinspect the family care home to redetermine whether a specific condition or practice continues to exist.

(1) Within 10 days of the receipt of such a request, OPWDD shall reinspect the family care home to redetermine whether a specific condition or practice continues to exist.

(2) In the event that the previously found condition or practice has been eliminated, the suspension or limitation shall be withdrawn.

(3) If the condition or practice has not been eliminated, OPWDD shall not thereafter be required to reinspect the family care home during the emergency period of suspension or limitation.

(d) During the 60-day suspension or limitation period provided for in subdivision (b) of this section, the commissioner shall determine whether to reinstate or remove the limitations on the provider's operating certificate, or to revoke, suspend or limit the operating certificate. Should the commissioner choose to revoke, suspend or limit the operating certificate, then the emergency suspension or limitation provided for shall remain in effect pending the outcome of an administrative hearing on the revocation, suspension or limitation.

(e) The family care provider, within 10 days of the date when the emergency suspension or limitation pursuant to subdivision (b) of this section is first imposed or within 10 days of the date of receipt of notice from the commissioner to revoke or limit the provider's operating certificate, may request an evidentiary hearing to contest the validity of the emergency suspension or limitation. Such an evidentiary hearing shall commence within 10 days of the family care provider's request and no request for an adjournment shall be granted without the concurrence of the family care provider, the commissioner and the hearing officer. The evidentiary hearing shall be limited to those violations of Federal and State law and regulations that gave rise initially to the emergency suspension or limitation. Should the commissioner decide to revoke, suspend or limit the facility's operating certificate, no administrative hearing on that action shall commence prior to the conclusion of the evidentiary hearing, the rendering of the hearing officer's report and the commissioner's final review and determination concerning the emergency suspension or limitation. The commissioner shall issue a ruling within 10 days after the receipt of the hearing officer's report.

(f) The commissioner may impose a fine upon a finding that the holder of the certificate has failed to comply with the terms of the operating certificate or with the provisions of any applicable statute, rule or regulation. The maximum amount of fine shall be $1,000 per day or $15,000 per violation. Such penalty may be recovered by an action brought by the commissioner in any court of competent jurisdiction. Such penalty may be released or compromised by the commissioner before the matter has been referred to the Attorney General. Any such penalty may be released or compromised, and any action commenced to recover the same may be settled or discontinued by the Attorney General with the consent of the commissioner.

(g) Any notice of suspension, revocation, or limitation of an operating certificate, or notice of intent to take such action, must also be addressed and sent to the executive director of an agency sponsored family care program.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.6 Voluntary discontinuance of operation

(a) In the event that the holder of an operating certificate for a family care home wishes to cease the operation or conduct of any of the activities, as defined in this Part, for which such certificate has been issued, wishes to transfer ownership or possession of the premises in which such activities are being conducted or elects not to apply to OPWDD for recertification upon the expiration of any current period of certification, it shall be the duty of the family care provider to give OPWDD and the sponsoring agency written notice of such intention not less than 60 days prior to the intended effective date of such transaction.

(b) Such notice shall set forth a detailed plan developed in conjunction with OPWDD and the sponsoring agency which makes provision for the safe and orderly transfer of each individual served by the family care provider into a program of services appropriate to each individual's ongoing needs.

(c) The family care provider shall not cease to provide any such services to any individual under any of the circumstances described in this section until the notice and plan required hereby are received, reviewed and approved by the sponsoring agency and OPWDD, with OPWDD having final authority to approve.

(d) For the purposes of this section, the requirement of prior notice and continuous provision of programs and services by the family care provider shall not apply to those situations and changes in circumstances directly affecting the family care provider that are not reasonably foreseeable at the time of occurrence, including but not limited to death or other sudden incapacitating disability or infirmity. Written notice shall be given to OPWDD and the sponsoring agency as soon as reasonably possible thereafter, in the manner set forth within this section.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.7 Visitation, inspection and investigation of family care homes

(a) OPWDD shall provide for the periodic visitation and inspection of each family care home.

(b) Inspections shall be made as frequently as OPWDD may deem necessary, but in any event such inspections shall be made on at least two occasions during each calendar year, one of which shall be without prior notice.

(c) OPWDD shall have the power to conduct investigations into the operations of any person(s) or entity which holds an operating certificate issued by the commissioner, into the operation of any family care home issued an operating certificate by the commissioner, and into the operations related to the provision of services regulated by this Part of any person(s) or entity providing a family care home for individuals with intellectual and/or developmental disabilities. OPWDD may designate a sponsoring agency to conduct such investigations.

(d) In conducting an inspection or investigation, an authorized representative(s) of OPWDD shall have the power to inspect the family care home, conduct interviews with individuals, interview other persons residing in the family care home, examine and copy all records, including financial and medical records of the family care home, and obtain such other information as may be required in order to ensure compliance with all applicable requirements.

(e) In conducting any inspection and investigation under this Part, the commissioner is empowered to subpoena witnesses, compel their attendance, administer oaths to witnesses, examine witnesses under oath, and require the production of any books, papers or records deemed relevant to the investigation, inspection or hearing.

(f) Information obtained in the course of such inspections and investigations shall be kept confidential.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.8 Duties of family care providers

(a) A family care provider shall comply with the provisions of this Part, other applicable laws and other applicable regulations of the commissioner.

(b) A family care provider shall make such reports as may be required by OPWDD and in the form and format acceptable to OPWDD.

(c) A family care provider shall cooperate with the commissioner or his or her authorized representative in any inspection or investigation by OPWDD.

(d) A family care provider shall permit an authorized representative(s) of OPWDD to inspect the family care home and all books and records, including financial records and records on individuals kept by the family care provider.

(e) A family care provider shall permit an authorized representative(s) of OPWDD to interview and examine any individual in the family care home, except that no individual may be examined against his or her will.

(f) A family care provider shall provide adequate and humane care for all individuals residing in the family care home.

(g) A family care provider shall comply with the family care manual policies and updates to such policies promulgated by OPWDD. The purpose of the manual is to enable a family care provider to have access to guidelines for the day-to-day operation of the family care home and information as to the family care provider's relationship with OPWDD. The sponsoring agency must ensure every family care provider is aware of and has access to the family care manual.

(h) A family care provider shall ensure that the expenditure of any monies provided through OPWDD for:

(1) replacement of necessary clothing belonging to the individuals;

(2) personal requirements and incidental needs of the individuals;

(3) recreational and cultural activities of individuals; and the maintenance of records are in conformance with the procedures established by OPWDD, subject to the approval of the State Comptroller.

(i) A family care provider shall maintain an individual's personal allowance account in conformance with the requirements set forth in the Social Services Law and Part 633 of this Title.

(j) A family care provider shall contribute toward the development and implementation of the individual's total plan of care.

(k) A family care provider shall provide a family atmosphere of acceptance, kindness and understanding, and endeavor to give each individual the support, attention and recognition that facilitates adjustment to the home and promotes an individual's development.

(l) A family care provider shall reside in the same home with the individuals.

(m) A family care provider shall ensure that individuals are not physically or psychologically abused.

(n) A family care provider shall participate in such training as is determined to be necessary by OPWDD to meet the needs of the individuals residing in the family care home.

(o) A family care provider shall develop a fire evacuation plan which shall be practiced periodically.

(p) The following procedures and requirements apply when any party who is 18 years of age or older (except for an individual receiving family care services) begins to reside in the family care home, and when a current resident (except for an individual receiving family care services) reaches the age of 18 years:

(1) The family care provider shall request that the sponsoring agency obtain background checks prior to or when such party begins to reside in the family care home or reaches the age of 18 years. The requested background checks include:

(i) a check of the staff exclusion list (SEL check) pursuant to section 633.24 of this Title;

(ii) a criminal history record check pursuant to section 633.22 of this Title; and

(iii) a check of the Statewide Central Register of Child Abuse and Maltreatment (SCR check) pursuant to section 633.24 of this Title.

(2) The family care provider shall ensure the provision, to the sponsoring agency, of information and fingerprints from the subject party, in the form, format and manner specified by the Justice Center as necessary to conduct the criminal history record check, and any other information as may be necessary to conduct the other background checks.

(3) Reserved

(4) The sponsoring agency shall ensure the provision of all required statements/information/fingerprints no later than five business days after the subject party becomes a resident or attains the age of 18 years.

(5) If the statement includes a conviction for a misdemeanor or felony, or a pending criminal charge, the sponsoring agency shall evaluate whether the safety of any people receiving family care services could be compromised by the party's continued residency and shall take appropriate steps to protect the safety of the person(s) receiving services.

(6) The sponsoring agency shall request:

(i) an SEL check;

(ii) a criminal history record check; and

(iii) an SCR check.

(7) If the Justice Center issues a denial or directs the sponsoring agency to issue a denial for a current family care provider or current adult household member, or if the potential household member begins to reside in the family care home, the sponsoring agency shall follow the requirements of section 633.22(h)(2) of this Title. If the Justice Center issues a denial or directs the sponsoring agency to issue a denial for a potential household member, family care provider shall not permit the subject party to reside in the family care home.

(8) If a criminal history record check was conducted concerning a party (other than the family care provider) and the party does not move into the family care home or permanently moves out of the family care home, the family care provider shall notify the sponsoring agency and the OPWDD in writing within 72 hours of the occurrence. The sponsoring agency shall notify the Justice Center within 14 days of the occurrence, in the form, format and manner required by the Justice Center.

(q) The family care provider shall notify the sponsoring agency and OPWDD of the identity and ages of all residents of the family care home, and shall notify the sponsoring agency and OPWDD when any changes occur in the residents of the family care home within 72 hours after the change.

(r) The family care provider shall notify the sponsoring agency and OPWDD when the provider or any resident of the family care home has been placed under arrest or is charged with a crime within 72 hours of the event.

(s) For the purposes of this section, college students who attend college but reside part of the year at the family care home shall be considered to reside in the family care home.

(t) Respite/substitute providers - background checks.

The same requirements related to background checks which are established for family care providers and family care household members are applicable to family care respite/substitute providers and, if respite is provided in the home of the respite/substitute provider, for adult household members. Required background checks include criminal history record checks, SEL checks and SCR checks. Sponsoring agencies shall deny an application to be a family care respite/substitute provider if the Justice Center directs the sponsoring agency to issue a denial based on the results of any criminal history record check.

History

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.9 Family Care Respite and Use of Substitute Providers

A family care program substitute provider is a party approved by a sponsoring agency to provide non-waiver respite services to individuals receiving family care services when a family care provider is temporarily not available to provide services. The approval and provision of these respite services must be in accordance with the process established by OPWDD.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.11 Admission to family care

(a) An applicant for admission must have a documented diagnosis of developmental disability as defined in the glossary (section 687.99).

(b) A family care home can meet the needs of the applicant.

CROSS REFERENCES:

Responsibility of the department for recipients in family care, Social Services Law § 138-a.

RESEARCH REFERENCES AND PRACTICE AIDS:

88 NY Jur 2d, Public Welfare and Old Age Assistance § 12.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 687.99 Glossary

(a) Certified capacity.

The maximum number of beds available for the placement of the OPWDD individuals receiving services and for use by individuals with developmental disabilities for respite purposes, as indicated on the operating certificate issued by the commissioner. In determining certified capacity, the commissioner takes into consideration all other persons residing in the home in relation to utilization and availability of space and accommodations. Any change in the total number of persons residing in the home may affect the certified capacity.

(b) Commissioner.

The commissioner of the New York State Office for People with Developmental Disabilities, or his or her designee.

(d) Family care home.

The combination of a private residence and an individual or individuals certified by OPWDD, pursuant to and in accordance with the provisions of article 16 of the Mental Hygiene Law and this Part, to provide care for persons with developmental disabilities.

(e) Family care program.

A residential program using certified family care homes to provide care for individuals in a family-oriented setting.

(f) OPWDD.

The Office for People With Developmental Disabilities, which is the administrative and regulatory agency responsible for the design, authorization, development, operation and/or certification of services, programs and facilities providing care and treatment to residents of New York State with developmental disabilities.

(g) Operating certificate.

A written document conveying to the public the authorization by the commissioner for a family care provider to operate a family care home.

(h) Personal allowance account.

The account maintained by the family care provider for management of the individual's personal allowance, and which details an individual's personal funds by accounting for deposits, withdrawals and interest accruals relative to those funds.

(i) Sponsoring Agency.

An agency that provides oversight of OPWDD certified family care homes and the delivery of services to individuals therein. An agency is approved to be a sponsoring agency of OPWDD certified family care homes upon execution and approval of the written agreement between OPWDD and the agency, provided that it is and remains a provider of services under the Home and Community Based Services (HCBS) comprehensive waiver operated by OPWDD and complies with all of the provisions of the agreement. A family care home may be sponsored by a Developmental Disabilities State Operations Office ("state sponsored") or a voluntary agency ("agency sponsored").

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Part 690 Day Treatment Services to Persons with Developmental Disabilities

N.Y. Comp. Codes R. & Regs. Tit. 14 § 690.2 Legal base

(a) The following sections of the Mental Hygiene Law authorize the commissioner to establish a separate class of operating certificate for day treatment facilities (see glossary) and to establish the standards governing such facilities:

(1) Sections 13.01 and 13.07 of the Mental Hygiene Law authorize OPWDD to pursue expansion of services and develop new methods of service delivery to serve the full range of needs of persons with developmental disabilities. Further, consistent with chapter 676 of the Laws of 1994, such methods of service delivery shall have as primary purposes, the attainment and promotion of independence, inclusion, individuality and productivity for persons with developmental disabilities.

(2) Section 13.09 of the Mental Hygiene Law grants the commissioner the power to adopt rules and regulations which are necessary and proper to implement any matter under his or her jurisdiction.

(3) Section 16.02 of the Mental Hygiene Law prohibits the operation of nonresidential facilities providing services for persons with developmental disabilities, unless an operating certificate has been obtained from the commissioner.

(4) Sections 16.03 and 16.05 of the Mental Hygiene Law provide that no operating certificate shall be issued by the commissioner unless the premises, equipment, personnel, and program are found to be adequate to provide the services for which an operating certificate is sought; and that such services will be provided in compliance with applicable laws and regulations.

(5) Sections 16.11 and 16.19 of the Mental Hygiene Law authorize the commissioner or an authorized representative to conduct investigations and inspections and permit review of the facility and all its books and records, to interview personnel, and obtain such other information as may be required in order to carry out the responsibilities of article 16 of the Mental Hygiene Law.

(6) Section 16.13 of the Mental Hygiene Law requires holders of operating certificates issued by the commissioner to assist OPWDD in carrying out its regulatory functions.

(7) Section 16.17 of the Mental Hygiene Law authorizes the commissioner to revoke, suspend, or limit an operating certificate upon a finding that the certificate holder has failed to comply with the terms of the operating certificate or with the provisions of any applicable statue, rule or regulation.

(b) Sections 364 and 364 (a) of the Social Services Law provide that OPWDD is responsible for establishing and maintaining standards for medical care and services in facilities under its jurisdiction in accordance with cooperative arrangements with the Department of Social Services and other State agencies.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 690.4 Issuance of operating certificate

(a) Principles of compliance.

(1) An operating certificate may be issued to an agency (see glossary) for the operation of a day treatment facility that meets the requirements of this Part and all other applicable State and Federal requirements.

(2) An application for an initial operating certificate, for the renewal of an existing operating certificate, or for certain program changes shall be submitted in the format and subject to the review procedures prescribed by OPWDD including, as appropriate, a certification of need review (see glossary) pursuant to Part 620 of this Title.

(i) A description and rationale for the facility's staffing pattern shall be submitted as part of the application for certification. OPWDD shall be notified of any significant changes in the staffing pattern, job expectations and/or minimum qualifications of the staff and impact on delivery of services.

(ii) The initial staffing allocation plan shall contain justification for the staff allocation based on the assessment and analysis of the needs of the persons served.

(a) Within six months of the issuance of the initial operating certificate, the facility shall submit to OPWDD a letter certifying that, based on subsequent assessments of the persons admitted to the facility, the staffing allocation plan as originally submitted and approved is adequate to meet the identified needs; or

(b) Any substantial revisions to a facility's original staffing plan shall be submitted to OPWDD for review and approval.

(c) If OPWDD discovers that any portion of the day treatment needs of the persons admitted are not being met because of inadequate staffing, the facility shall prepare a plan of correction and implement, in a timely fashion, a staffing allocation plan that will meet the identified service needs of the admitted persons.

(3) The initial and renewed operating certificate may be valid for a period of up to three years.

(4) An operating certificate shall be issued to a day treatment facility for a specific inspected site and its approved satellite site(s).

(5) No day treatment facility may be operated without a valid operating certificate issued to the agency by OPWDD.

(6) The current operating certificate shall be maintained at the facility site and shall be available to anyone requesting to see it. Copies of the operating certificate showing the approved satellite site(s) shall be available at said satellite site(s).

(7) The number of full-time equivalent persons (see glossary) for which the overall facility (including any satellite sites) has been approved for routine on-site attendance at any one time, shall be stated on the operating certificate as the certified capacity (see glossary).

(8) All operating certificates shall remain the property of OPWDD. Expired, invalidated, revoked or terminated certificates shall be returned to OPWDD.

(9) Suspension, revocation or limitation of the operating certificate shall be in accordance with the provisions of article 16 of the Mental Hygiene Law.

(10) The certificate holder shall notify OPWDD of any intention to voluntarily terminate the operation of the facility at least 60 days prior to anticipated termination. This notice of intent to voluntarily terminate operation shall include a statement of the actions which will be taken by the certificate holder:

(i) to assure appropriate referral of persons being served;

(ii) to preserve the confidentiality of records; and

(iii) to settle all outstanding debts and accounts receivable according to the pre-existing individual agreements.

(11) Catastrophic termination of operation.

(i) The commissioner shall be notified immediately of any catastrophe.

(ii) If, through a catastrophe or other circumstance beyond the facility's control, such as but not limited to fire, flood or earthquake, the facility is unable to operate as certified for a period of 60 days, the operating certificate shall be subject to suspension, revocation or limitation. Such time period shall be extended upon application to and approval from the commissioner. Such extension shall be granted in a timely manner based on the documentation that the facility is proceeding in good faith to reinitiate operation and that satisfactory service alternatives have been provided for the participants in the interim.

(iii) From the time of such catastrophe, the agency, in collaboration with the commissioner, shall be responsible for providing emergency quarters and continuing support to all persons, until such time as the facility can be made habitable or suitable alternative quarters can be found. Such requirements shall be contingent upon maintenance of the current reimbursement agreements.

(12) No operating certificate is transferable or assignable to any other party or entity.

(b) Standards of certification.

(1) OPWDD shall verify that day-to-day on-site attendance at the facility (or satellite) has not exceeded its certified capacity (see section 690.99[k] of this Part).

(2) OPWDD shall verify that the facility's current staffing levels correspond to its approved staffing plan and amendments thereto.

History

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Chapter XX JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS

Part 700 Administrative Adjudication Process For Substantiated Cases Of Abuse And Neglect

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.1 Background and intent

(a) The Justice Center for the Protection of People with Special Needs was established in response to the recognized need to strengthen and standardize the safety net for vulnerable persons who receive care from New York State's human services agencies.

(b) The Justice Center is required to establish a process by which persons found to have a substantiated case of abuse or neglect may appeal such a finding. Pursuant to Social Services Law section 494(1) (a), such appeals process must include a process by which the subject of a substantiated report of abuse or neglect is notified of the right to appeal and the procedure by which they may challenge the determination that a report is substantiated, with a de novo standard of review.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.2 Applicability

This Part shall apply to all adjudicatory proceedings conducted pursuant to Social Services Law section 494 to determine whether a preponderance of the evidence shows that the subject of a substantiated report of abuse or neglect has committed the act or acts of abuse or neglect giving rise to the substantiated report.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.3 Definitions

Whenever used in this Part:

(a) Executive director means the executive director of the Justice Center for the Protection of People with Special Needs (Justice Center) or the executive director's designee.

(b) Justice center means the Justice Center for the Protection of People with Special Needs.

(c) Administrative law judge means an attorney employed by the Justice Center who has been designated and authorized by the executive director to preside at hearings held under this Part.

(d) Subject means a person named in a substantiated report of abuse or neglect as having committed an act or acts of abuse or neglect.

(e) Hearing means an administrative proceeding held pursuant to this Part wherein the subject of a report of abuse or neglect is seeking relief from a determination denying a request to amend a substantiated report of abuse or neglect.

(f) Substantiated report means a report of abuse or neglect wherein a determination has been made as a result of an investigation that there is a preponderance of the evidence that the alleged act or acts of abuse or neglect occurred, that any such act or acts committed by the subject constitute abuse or neglect and, pursuant to Social Services Law section 493(4), a determination of the category level of such act or acts.

(g) Abuse or neglect means all reportable incidents as defined in Social Services Law section 488(1)(a) through (h). It does not include significant incidents defined in Social Services Law section 488(1)(i).

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.4 Initiation of request for amendment

(a) The Justice Center shall provide the subject of a substantiated report of abuse or neglect with written notice of the findings of the report, and the subject has the right to request an amendment of the report.

(b) The request for amendment of the substantiated report of abuse or neglect shall be a written statement signed by the subject or representative setting forth the basis for the request.

(c) The request for amendment of the substantiated report of abuse or neglect shall be received by the Justice Center within 30 days of the subject of the report being notified that the report is substantiated.

(d) The 30-day time period shall commence from the date of mailing of the notice of the substantiated report to the subject, provided that 10 days shall be excluded from the calculation of the time period to account for mailing.

(e) In their sole discretion, the executive director shall have the authority in extraordinary circumstances to accept a request for amendment after the expiration of the time period set forth in subdivision (c) of this section, when an injustice would result from the failure to permit the late filing of the request for amendment.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.5 Review based upon request for amendment

(a) The Justice Center shall maintain an administrative appeals unit to conduct reviews of substantiated reports that may be requested by subjects pursuant to Social Services Law section 494(1)(a). The administrative appeals unit shall conduct and complete such reviews of the substantiated report based upon the subject's request for amendment as expeditiously as possible after receipt of the record for review, which shall include the investigative file, the substantiated report, the subject's request for amendment and any additional evidence submitted by the subject.

(b) The administrative appeals unit shall determine after a review of all records, reports and information in its possession concerning the substantiated report whether there is a preponderance of the evidence to find that the subject committed an act or acts of abuse or neglect giving rise to the substantiated report, and if there is a preponderance of the evidence, the category level of abuse or neglect that such act or acts constitute.

(1) upholding the report in its entirety;

(2) modifying the report; or

(3) finding that the report is unsubstantiated.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.6 Right to a hearing/hearing issues

(a) After review by the administrative appeals unit, a subject of a substantiated report of abuse or neglect has a right to a hearing before an administrative law judge pursuant to Social Services Law section 494 to determine whether the findings of the report should be amended.

(b) The issues at the hearing are whether the subject has been shown by a preponderance of the evidence to have committed the act or acts giving rise to the substantiated report, and if there is a finding of a preponderance of the evidence, whether the substantiated allegations constitute abuse or neglect, and pursuant to Social Services Law section 493(4), the category level of abuse or neglect that such act or acts constitute.

(c) The subject of a substantiated report of abuse or neglect may retain counsel at their own expense and may be represented by such counsel at the pre-hearing conference and the hearing.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.7 Notice of the pre-hearing conference

(a) A hearing shall be initiated by the administrative law judge scheduling a pre-hearing conference after a finding by the administrative appeals unit that a report is substantiated.

(b) All pre-hearing conferences shall be scheduled by a written notice issued to the subject.

(c) The notice of pre-hearing conference shall specify the date, time and place for the pre-hearing conference, and shall include a statement informing the subject of the procedures for requesting and granting adjournments and the consequence of failing to appear as directed at the pre-hearing conference.

(d) The notice of pre-hearing conference shall further include a statement of the following: the right of the subject to retain counsel at their own expense and be represented by an attorney or representative, the right of the subject to present evidence on their behalf, to produce witnesses, to cross-examine witnesses and to review documents that the Justice Center intends to offer into evidence at the hearing.

(e) The notice of pre-hearing conference shall be mailed at least 20 days prior to the date of the pre-hearing conference.

(f) If the subject does not want to proceed to a hearing, they shall have the option to decline participation in the pre-hearing conference.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.8 Pre-hearing conference

(a) For the convenience of the administrative law judge or the parties, the administrative law judge may conduct the pre-hearing conference by telephone or video conference.

(b) At the pre-hearing conference, the parties shall identify and exchange witness information and evidence that the parties intend to introduce at the hearing. The parties shall not be precluded from exchanging witness information and evidence after the pre-hearing conference, and, at the discretion of the administrative law judge upon a finding that no other party will be prejudiced by such delay, either side may call witnesses and present evidence at the hearing even if such evidence and such witnesses were not identified prior to the date of the hearing. If the pre-hearing conference is conducted by telephone or video conference, the parties shall exchange evidence by e-mail, regular mail or any other manner convenient and mutually agreeable to the parties, as long as the manner of exchange will not cause a delay in the hearing and is adequate to protect the confidentiality of such evidence.

(c) At the pre-hearing conference, the parties should notify the administrative law judge that an interpreter is needed at the hearing; provided, however, that a failure to provide such notice shall not preclude a later request for an interpreter.

(d) The administrative law judge shall address other administrative matters as deemed necessary to complete a timely hearing.

(e) The date for the hearing shall be scheduled at the pre-hearing conference.

(f) The failure of the parties to appear at the pre-hearing conference shall result in a default order, except upon a showing of good cause.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.9 Responsibilities of the administrative law judge

(a) The administrative law judge shall conduct all proceedings in a fair and impartial manner.

(b) The administrative law judge shall not communicate directly or indirectly in connection with any issue that relates in any way to the merits of a pending adjudicatory proceeding with any party except upon notice and opportunity for all parties to participate.

(1) rule upon applications and requests, including requests for adjournments;

(2) set the date, time and place of the hearing;

(3) administer oaths and affirmations;

(4) issue subpoenas requiring the attendance and testimony of witnesses and production of books, records, and other evidence;

(5) examine witnesses;

(6) admit and exclude evidence;

(7) limit the number of times any witness may testify, repetitious examination or cross-examination, and the amount of corroborative or cumulative testimony;

(8) request and/or hear oral arguments;

(9) request written arguments; and

(10) take necessary measures for the maintenance of order and the efficient conduct of the hearing, and conduct the hearing in accordance with the requirements of due process.

(d) Consolidation and severance.

(1) In proceedings that involve common questions of fact, the administrative law judge may, upon their own initiative or upon application of any party, order consolidation or a joint hearing of any or all issues to avoid unnecessary delay and cost; the parties shall have the opportunity to be heard prior to issuance of such order.

(2) The administrative law judge may order a severance of a part or parts of the hearing and hear separately any issue in the proceeding to avoid prejudice or inconvenience.

(e) Adjournments.

(1) A request for an adjournment of the hearing shall be made to the administrative law judge at least three days prior to the commencement of the hearing, except for good cause shown.

(2) Adjournments may be granted by the administrative law judge for good cause.

(3) All parties shall be notified of adjournments to a specified date, time and place.

(f) The administrative law judge shall not be bound by the rules of evidence observed by courts, except the rules of privilege recognized by law.

(g) The administrative law judge may take judicial notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the agency. When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could not be taken, every party shall be given notice thereof and shall on timely request be afforded an opportunity prior to decision to dispute the fact of its materiality.

(h) No administrative law judge shall preside over a proceeding in which such judge has any interest in or bias with respect to the matters involved in the proceeding or a conflict of interest with respect to the parties.

(1) If a party has a good faith basis to believe that an administrative law judge cannot render a fair and impartial decision in a particular case, such party may request that the administrative law judge recuse himself or herself. Such request must be in writing and include an affidavit indicating the specific grounds on which the party claims interest or bias.

(2) Grounds for recusal of an administrative law judge include that the administrative law judge has previously dealt with the substance of the matter which is the subject of the hearing except in the capacity of administrative law judge; or has any interest in the matter, financial or otherwise, direct or indirect, which may impair the independent judgment of the administrative law judge; or has displayed bias or partiality to any party to the hearing.

(3) The administrative law judge may independently determine to remove himself or herself from presiding at a hearing on the grounds set forth in paragraph two of this subdivision.

(4) Upon receipt of a request for recusal, the administrative law judge shall rule on the request. If the administrative law judge denies the request for recusal, a written decision shall be issued stating the reasons for their decision and a copy of the decision shall be provided to all parties.

(5) A ruling by the administrative law judge denying a request for recusal may be appealed to the executive director at the conclusion of the hearing.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.10 Conduct of the hearing

(a) An administrative law judge shall preside at the hearing and make all procedural rulings. For the convenience of the administrative law judge or the parties, the administrative law judge may conduct the hearing by video conference. The parties shall be given notice thereof and shall on timely request be afforded an opportunity prior to a decision to conduct the hearing by video technology to be heard on their respective positions.

(b) Appearances.

(1) A party may appear in person or by counsel.

(2) Any person appearing on behalf of a party in a representative capacity when that party is not present at the hearing shall be required to show their authority to act in such capacity and shall file a notice of appearance with the administrative law judge.

(3) If a party fails to appear at the hearing and no adjournment has been requested and granted for cause, the administrative law judge shall recommend a default order.

(4) At any time before a report and recommendation is submitted to the executive director, the administrative law judge may relieve any party of the consequences of a default upon good cause shown.

(c) An administrative law judge shall make an initial statement describing the nature of the proceedings, the manner in which the hearing will be conducted and the issues to be addressed.

(d) The burden of proof shall be on the Justice Center to show by a preponderance of the evidence that the subject committed the act or acts of abuse or neglect alleged in the substantiated report that is the subject of the proceeding and that such act or acts constitute the category level of abuse and neglect set forth in the substantiated report. The Justice Center shall present its case first.

(e) The administrative law judge shall exclude testimony or other evidence that they find is irrelevant or unduly repetitious.

(f) All testimony shall be given under oath or affirmation, unless the testimony is given by a young child or an individual who is unable to understand the meaning of an oath or affirmation.

(g) Each party may have witnesses give testimony, present relevant evidence, cross-examine opposing witnesses, offer rebuttal evidence and examine any document or item offered into evidence.

(h) Each party may make an opening and a closing statement.

(i) At the conclusion of the hearing, all parties shall be afforded an opportunity to provide written argument of issues of law. Such written arguments shall be provided to the administrative law judge and the other parties within 10 days of the conclusion of the hearing.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.11 Hearing record

(a) A verbatim recording shall be made of the hearing, in any manner that is capable of accurately recording the hearing.

(b) A transcript of the hearing shall be made available to any party upon request and payment of the cost of the transcript. If more than one party requests transcription of the hearing, then the cost of transcription shall be divided equally between those parties.

(c) The hearing record may include but is not limited to: all notices, including the notice of pre-hearing conference and the notice of hearing; any motions submitted and rulings thereon, including any request for recusal of an administrative law judge; the recording of the proceedings and testimony taken at the hearing; exhibits; matters officially noticed; stipulations and memoranda of law filed in connection with the hearing; and the administrative law judge's report and recommendation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.12 Administrative law judge's report and recommendations

(a) At the conclusion of the hearing, the administrative law judge shall issue a report and recommendation, which shall set forth their determination of the issues. The report and recommendation shall be based solely upon the evidence presented at the hearing and shall set forth the reasons and factual basis for the determination. The report shall include a description of the issues, a recitation of relevant facts, an assessment of the credibility of testifying witnesses, the applicable statutory and regulatory authority, findings of fact, conclusions of law and the administrative law judge's recommendation to the executive director.

(b) Findings of fact must be based exclusively on the record of the hearing.

(c) The administrative law judge shall attach to the report and recommendation a list identifying each exhibit admitted into evidence, including the exhibit number or letter and the number of pages.

(d) A copy of the written report and recommendation shall be provided to the executive director along with the hearing record.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.13 Executive director's final determination

(a) After receipt of the administrative law judge's report and recommendation and the hearing record, the executive director or their designee shall make a final determination. The final determination of the executive director or designee shall be in writing and embodied in an order. The order shall be based exclusively upon the record of the hearing and shall contain findings of fact and conclusions of law. If the final determination of the executive director or designee conflicts with the administrative law judge's report and recommendation, the executive director or designee shall set forth the reasons in the order. A copy of the written order shall be mailed to each party, or at the option of the parties, an electronic copy of such order shall be transmitted to each party.

(b) The order shall contain notice of the right to seek review of the order pursuant to article 78 of the Civil Practice Law and Rules.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 700.14 Finality

(a) The determination of the executive director or their designee shall be final and is not subject to further administrative review.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

Part 701 JUSTICE CENTER CRIMINAL HISTORY INFORMATION CHECKS

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.1 Background and Intent

(b) Prior to the passage of the Protection of People with Special Needs Act (chapter 501 of the Laws of 2012), human services agencies were authorized, by law, to conduct criminal history information checks of certain individuals. The Protection of People with Special Needs Act seeks to standardize the review process and centralizes, in the Justice Center, the criminal history information check and suitability determination process for facilities or providers under the Justice Center mandate that are overseen by the Office of Mental Health, the Office for People with Developmental Disabilities and the Office of Children and Family Services.

(c) The purpose of this Part is to establish the procedures for conducting these criminal history information checks and resulting suitability determinations.

History

Amended New York State Register August 29, 2018/Volume XL, Issue 35, eff. 8/29/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.2 Applicability

(a) This Part shall apply to providers of services that are required to obtain criminal history information checks for specific persons pursuant to section 16.33 or 31.35 of the Mental Hygiene Law.

(b) The provisions of this Part shall also apply to authorized agencies as defined in subdivision (10) of section 371 of the Social Services Law which operate a residential program for children and the Office of Children and Family Services in relation to any juvenile justice program it operates as specified in subdivision (1) of section 378-a of the Social Services Law, excluding foster family homes.

History

Amended New York State Register August 29, 2018/Volume XL, Issue 35, eff. 8/29/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.3 Legal base

(a) Subdivision (5) of section 553 of the Executive Law authorizes the Justice Center to review and evaluate criminal history information in certain situations.

(b) Section 16.33 of the Mental Hygiene Law provides that certain providers of services for persons with developmental disabilities must request through the Justice Center, a criminal history information check for specified persons.

(c) Section 31.35 of the Mental Hygiene Law provides that certain providers of services for persons with mental illness must request a criminal history record check for specified persons. In accordance with section 550.5 of this Title, the Office of Mental Health has delegated any responsibility it may have for these checks to the Justice Center for review and evaluation of background checks for providers for whom the Justice Center has authority to perform such review and evaluation pursuant to subdivision (5) of section 553 of the Executive Law.

(d) Subdivision (1) of section 378-a of the Social Services Law provides that each authorized agency which operates a residential program for children and the Office of Children and Family Services in relation to any juvenile justice program it operates, shall request, through the Justice Center, a criminal history information check for each prospective operator, employee or volunteer of such residential program for children or juvenile justice program who will have regular and substantial unsupervised or unrestricted physical contact with children in such program.

History

Amended New York State Register August 29, 2018/Volume XL, Issue 35, eff. 8/29/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.6 Criminal history review and evaluation

(a) After the Justice Center reviews the criminal history information of a subject individual, the Justice Center and the provider of services shall take the following actions:

(1) If the subject individual is a natural person operator of a new provider of services on or after June 30, 2013; or a new natural person operator of an existing provider on or after June 30, 2013:

(i) when a subject individual under this subdivision has no criminal history, the Justice Center shall promptly advise the commissioner of the State agency to whom the application for licensing, certification or renewal was submitted to resume its review of the application in accordance with its implementing regulations;

(ii) when the criminal history information of a subject individual under this subdivision reveals a felony conviction at any time for a sex offense, a felony conviction within the past 10 years involving violence, or a conviction for abandoning a child and/or endangering the welfare of an incompetent, physically disabled or vulnerable elderly person pursuant to section 260.00, 260.25, 260.32 or 260.34 of the Penal Law or any comparable offense in any other jurisdiction, the Justice Center shall advise the commissioner of the State agency to whom the application was submitted that the application must be denied, unless the commissioner of such agency in consultation with the Justice Center, determines, in their discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of individuals receiving services in the facility or program;

(iii) when the criminal history information of a subject individual under this subdivision reveals a conviction for any crime other than one set forth in paragraph (ii) of this subdivision, the Justice Center may, consistent with article 23-A of the Correction Law, advise the commissioner of the State agency to whom the application was submitted that the application process shall be denied, unless the commissioner of such agency in consultation with the Justice Center, determines, in their discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of individuals receiving services in the facility or program;

(iv) when the criminal history information of a subject individual under this subdivision reveals a pending charge for any felony or any comparable offense in any other jurisdiction, the Justice Center shall advise the commissioner of the State agency to whom the application was submitted that the application must be held in abeyance until the charge is finally resolved;

(v) when the criminal history information of a subject individual under this subparagraph reveals a pending charge for any misdemeanor or any comparable offense in any other jurisdiction, the Justice Center may advise the commissioner of the State agency to whom the application was submitted that the application should be held in abeyance until the charge is finally resolved or give guidance that the provider may act on the application in its own discretion, consistent with applicable laws and regulations.

(2) If the subject individual is a prospective employee or volunteer for a provider of services:

(i) when a subject individual under this paragraph has no criminal history, the Justice Center shall promptly advise the provider of services that the subject individual is cleared for the provider's consideration for hiring;

(ii) when the criminal history information of such a subject individual reveals a felony conviction at any time for a sex offense, a felony conviction within the past 10 years involving violence, a conviction for abandoning a child and/or endangering the welfare of an incompetent, physically disabled or vulnerable elderly person pursuant to section 260.00, 260.25, 260.32 or 260.34 of the Penal Law or any comparable offense in any other jurisdiction, the Justice Center shall direct the provider to deny employment of or authorization to provide services by such person, unless the Justice Center, determines, in its discretion, after reviewing material submitted by the applicant, if any, pursuant to subdivision (b) of this section, that approval of the application will not in any way jeopardize the health, safety or welfare of individuals receiving services in the facility or program;

(iii) when the criminal history record of a subject individual of a provider of services reveals a conviction for any crime other than one set forth in subparagraph (ii) of this paragraph, the Justice Center may, consistent with article 23-A of the Correction Law, direct the provider to deny employment or authorization to provide services by such person, unless the Justice Center determines, in its discretion, after reviewing material submitted by the applicant, if any, pursuant to subdivision (b) of this section, that approval of the application will not in any way jeopardize the health, safety or welfare of individuals receiving services in the facility or program;

(iv) in cases in which the Justice Center does not issue a denial, or does not direct the provider of services to issue a denial, the provider of services may act on the application in its own discretion, consistent with all applicable laws and regulations;

(v) when the criminal history information of a subject individual of a provider of services reveals a pending charge for any felony or any comparable offense in any other jurisdiction, the Justice Center shall hold the application in abeyance until the charge is finally resolved;

(vi) when the criminal history information of a subject individual of a provider of services reveals a pending charge for any misdemeanor or any comparable offense in any other jurisdiction, the Justice Center may hold the application in abeyance until the charge is finally resolved or give guidance that the provider may act on the application in its own discretion, consistent with applicable laws and regulations.

(b) Prior to making a determination to deny an application pursuant to subdivision (a) of this section, the Justice Center shall afford the subject individual or a new operator of an existing provider of services an opportunity to explain in writing, within 20 calendar days from the date the notification was mailed, why the application should not be denied.

(c) When the Justice Center directs a provider of services to deny an application of a subject individual, or to terminate a temporarily approved subject individual, based on the criminal history information, the provider of services shall notify such person that such criminal history information is the basis of the denial. The subject individuals shall be entitled to receive a copy of the summary of the New York criminal history information provided by the Justice Center to the provider of services from the provider of services upon written request by the subject individual.

(d) Documentation and confidentiality requirements.

(1) Only the authorized person and the relevant subject individual shall have access to any summary of New York criminal history information that may have been received by a provider of services. However, the summary of New York State criminal history information may be disclosed by the authorized person to other parties who are directly participating in any decision with regard to a subject individual, to which this information is relevant, provided, however, that with respect to information obtained from the FBI as a result of a national criminal history record check, no information shall be transmitted to the non-governmental provider.

(2) The authorized person and any other party to whom such summary of New York State criminal history information is disclosed shall keep this information strictly confidential.

(3) Any party who willfully permits the release of any summary of New York State criminal history information to parties not authorized to receive same in accordance with section 845-b of the Executive Law or this regulation shall be guilty of a misdemeanor.

History

Amended New York State Register August 29, 2018/Volume XL, Issue 35, eff. 8/29/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.7 Notification of subsequent criminal charges

(a) Upon receiving notification from the division that there is a pending criminal action or proceeding with regard to a subject individual, the Justice Center shall promptly notify the authorized person of a provider of services of the allegation.

(b) Upon receiving notification from the Justice Center of the pending criminal action or proceeding, the provider of services shall take any and all appropriate action to protect the health, safety and welfare of individuals receiving services. Such action or actions shall be documented in a safety assessment. In cases involving pending criminal actions or proceedings against subject individuals, it shall be the responsibility of the provider of services to inquire of the subject individual about the outcome of such proceedings if the subject individual remains in service with the provider.

History

Amended New York State Register August 29, 2018/Volume XL, Issue 35, eff. 8/29/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.8 Responsibilities of providers of services

(a) Recordkeeping.

(1) Each provider of services subject to the provisions of this Part shall establish and maintain the following records:

(i) the results of the check of the Justice Center's register of substantiated category one cases of abuse or neglect, also known as the staff exclusion list;

(ii) for each subject individual, a copy of their fully executed and signed applicant consent form for fingerprinting required pursuant to sections 553 and 845-b of the Executive Law and section 701.5 of this Part; and

(iii) a documented safety assessment if the provider of services has received a subsequent arrest notification on a subject individual.

(2) Such records shall be maintained in a manner that maintains the security of the information contained therein, but which also enables the State agency with licensing and/or monitoring jurisdiction over the provider to obtain immediate and unrestricted access to such information upon its request, for the purpose of monitoring compliance with its regulations.

(3) The Justice Center's criminal background check (CBC) system application shall maintain the names of all subject individuals for whom a request for a criminal history information check was submitted to the Justice Center, identifying whether they were applying for employment or a volunteer position; and the results of the criminal history information check suitability determination of the Justice Center.

(b) Notifications.

A provider of services' authorized person must immediately, but no later than 14 days after the event, notify the Justice Center by updating the applicant's or employee/volunteer's employment status in the Justice Center's CBC system application when:

(1) any subject individual who is subject to a criminal history information check in accordance with this Part has withdrawn the application or is no longer being considered for the position for which they applied; or

(2) any subject individual who was subject to, and underwent, a criminal history information check in accordance with this section was hired, not hired or is no longer employed by or volunteering at the program or facility;

(3) a provider of services' authorized person must immediately notify the Justice Center when such authorized person temporarily approves a subject individual to provide services while the results of the criminal history information check are pending by updating the subject individual's employment status in the Justice Center's CBC system application;

(4) a provider of services must immediately notify the Justice Center when an authorized person so designated by the provider will no longer be acting as an authorized person by submitting a completed authorized person revocation form.

(1) Each provider of services subject to the provisions of this Part shall maintain information necessary to demonstrate compliance with this Part, as set forth in subdivision (a) of this section, for at least six years after the subject individual is no longer employed or volunteers in a position that involves regular and substantial unsupervised or unrestricted physical contact with clients, unless otherwise directed by the State agency with licensing and/or monitoring authority over the provider.

(2) If directed to do so by the Justice Center, a provider of services subject to this Part shall dispose of the summary of the criminal history information and/or any other information obtained about a subject individual in accordance with such direction.

(3) Disposal of criminal history information and/or any other information obtained about a subject individual and Justice Center determinations shall be performed in a manner that ensures the confidentiality of the information.

(d) Policies and procedures.

Each provider of services subject to the provisions of this Part shall have policies and procedures designed to implement the provisions of this Part.

History

Amended New York State Register August 29, 2018/Volume XL, Issue 35, eff. 8/29/2018

Part 702 Use Of Social Security Numbers

N.Y. Comp. Codes R. & Regs. Tit. 14 § 702.1 Background and intent

(a) The Protection of People with Special Needs Act (the act), enacted as chapter 501 of the Laws of 2012, seeks to prevent persons responsible for egregious or repeated acts of abuse or neglect of a vulnerable person from being engaged as employees, administrators, consultants, interns, volunteers or contractors, and from obtaining licenses, certificates or other approvals, for positions where they have the potential for regular and substantial contact with vulnerable persons or other individuals whom the act seeks to protect.

(b) To accomplish this goal, the act provides that all custodians who have been found by a preponderance of the evidence, after an opportunity for a fair hearing, to have engaged in an act of abuse or neglect of sufficient severity or with sufficient frequency, shall be placed on the register of substantiated category one cases of abuse or neglect, also known as the "staff exclusion list."

(c) This regulation outlines the procedures for obtaining and using social security numbers to assist in verifying the identity of subjects of reports in the vulnerable persons central register (VPCR); individuals placed on the staff exclusion list and those individuals who must be screened against the staff exclusion list.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 702.2 Applicability

This regulation applies to all facilities and provider agencies as defined in subdivision (4) of section 488 of the Social Services Law and to all other entities that must screen individuals against the staff exclusion list pursuant to subdivision (2) of section 495 of the Social Services Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 702.3 Legal authority

(a) The act provides for the creation of a Justice Center for the Protection of Persons with Special Needs (Justice Center).

(b) Section 492 of the Social Services Law mandates that the Justice Center establish a VPCR in which findings of whether alleged acts of abuse or neglect are substantiated or unsubstantiated shall be entered.

(c) Section 492 of the Social Services Law mandates that upon accepting a report of a reportable incident, an investigation must be initiated that includes the determination of whether the subject of the report is currently the subject of an open or substantiated report in the VPCR.

(d) Sections 493, 494 and 495 of the Social Services Law provide for the creation of a register of substantiated category one cases of abuse or neglect (the staff exclusion list), and describe the circumstances and due process requirements for placing a custodian on that register.

(e) Section 495 of the Social Services Law provides that a custodian placed on the staff exclusion list is subject to termination of employment from a facility or provider agency, provided that for State entities bound by collective bargaining, action established by collective bargaining shall govern.

(f) Subdivision (2) of section 495 of the Social Services Law requires a screening agency, as defined in this Part, to check the staff exclusion list before determining whether to hire or otherwise allow any person as an employee, administrator, consultant, intern, volunteer or contractor who will have the potential for regular and substantial contact with a service recipient or other applicable individual and before approving an applicant for a license, certificate, permit or other approval to provide care to a service recipient or other applicable individual.

(g) Paragraph (e) of subdivision (1) of section 96 of the Public Officers Law permits a State agency to disclose personal information incident to a routine use, which means any use of such record or personal information relevant to the purpose for which it was collected, and which use is necessary to the statutory duties of the agency that collected or obtained the record or personal information, or necessary for that agency to operate a program specifically authorized by law.

(h) Paragraph (c) of subdivision (1) one of section 94 of the Public Officers Law permits a State agency to obtain the social security number of an individual for purposes of a quasi-judicial determination.

(i) Paragraph (b) of subdivision (3) of section 399ddd of the General Business Law permits firms, partnerships, associations or corporations to require an individual to disclose or furnish their social security account number, when required by State or local law or regulation.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 702.4 Definition

Whenever used in this Part:

(a) Custodian shall mean a director, operator, employee or volunteer of a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a facility or provider agency pursuant to contract or other arrangement that permits such person to have regular and substantial contact with individuals who are cared for by such a facility or provider agency.

(b) Delegate investigatory entity shall have the same meaning as expressed in subdivision (7) of section 488 of the Social Services Law.

(c) Facility or provider agency shall have the same meaning as expressed in subdivision (4) of section 488 of the Social Services Law.

(d) Screening agency shall mean a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law; any other provider of services to vulnerable persons in programs licensed, certified or funded by any State oversight agency; and any other provider agency or licensing agency as defined in subdivision (3) or (4) of section 424-a of the Social Services Law.

(e) Service recipient shall mean an individual who resides or is an inpatient in a residential facility or who receives services from a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law.

(f) Staff exclusion list shall mean the register of substantiated category one cases of abuse or neglect, pursuant to sections 493 and 495 of the Social Services Law.

(g) State oversight agency shall mean the State agency that operates, licenses or certifies an applicable facility or provider agency; provided however that such term shall only include the following entities: the Office of Mental Health, the Office for People with Developmental Disabilities, the Office of Alcoholism and Substance Abuse Services, the Office of Children and Family Services, the Department of Health and the State Education Department.

(h) Vulnerable person shall have the same meaning as expressed in subdivision 15 of section 488 of the Social Services Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 702.5 Verification of identity

(a) The Justice Center or a delegate investigatory entity responsible for investigating a reportable incident pursuant to paragraph (c) of subdivision (3) of section 492 of the Social Services Law shall be authorized to obtain the social security number of any custodian who is being investigated as a subject of a reportable incident, by consent from the custodian under investigation or from the applicable facility or provider agency, for purposes of verifying the custodian's identity as the subject of any open or substantiated report in the VPCR and, where applicable, as an individual included on the staff exclusion list.

(b) Any person applying for a position for which such person must be screened against the staff exclusion list pursuant to subdivision (2) of section 495 of the Social Services Law shall provide the applicable screening agency with their social security number for submission to the Justice Center for the purpose of verifying the person's identity to determine whether the individual is included on the staff exclusion list.

(c) An individual's failure to provide their social security number when requested pursuant to this section, after receiving notice of the reason for such request, may preclude the individual from being considered or approved for any such position.

History

Amended New York State Register January 29, 2025/Volume XLVII, Issue 04, eff. 1/29/2025

N.Y. Comp. Codes R. & Regs. Tit. 14 § 702.6 Confidentiality

The Justice Center shall promulgate policies and procedures regarding corrective actions or penalties for failure to comply with the use, confidentiality and non-disclosure requirements of Sections 89, 94, 95, 96 and 96-a of the Public Officer's Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 702.7 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.

Part 703 Justice Center Facility And Provider Disclosure

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.1 Background

The Protection of People with Special Needs Act (chapter 501 of the Laws of 2012) provides that access to records relating to the abuse or neglect of vulnerable persons may be obtained from facilities or provider agencies as defined in subdivision (4) of section 488 of the Social Services Law that are not agencies of State government. Subdivision (6) of section 490 of the Social Services Law provides that records in those providers' possession that relate to abuse or neglect shall be made available to the same extent that they would be available under article 6 of the Public Officers Law from a State agency.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.2 Applicability

(a) This Part governs the process for obtaining the disclosure of records of State certified or licensed facilities or provider agencies, as defined in subdivision (4) of section 488 of the Social Services Law, relating to the abuse or neglect of vulnerable persons, as mandated by subdivision 6 of section 490 of the Social Services Law.

(b) Individual requests for records under other statutory authority, including section 33.25 of the Mental Hygiene Law, section 422-A of the Social Services Law and article 6 of the Public Officers Law as applied to the records of the Justice Center for the Protection of People with Special Needs as a State agency, are not covered by this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.3 Legal authority

(a) The Protection of People with Special Needs Act creates the Justice Center for the Protection of People with Special Needs and authorizes the Justice Center to promulgate regulations to implement its mandate.

(b) Subdivision (6) of section 490 of the Social Services Law requires the Justice Center to respond to requests for disclosure of records of State certified or licensed facilities or provider agencies, as defined in subdivision (4) of section 488 of the Social Services Law, relating to the abuse or neglect of vulnerable persons.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.4 Definitions

Whenever used in this Part:

(a) Justice Center means the New York State Justice Center for the Protection of People with Special Needs.

(b) Requester means the person submitting a request to the Justice Center for disclosure of facility or provider agency records under this Part.

(c) Record means any information kept, held, filed, produced or reproduced by, with or for a provider, in any physical form whatsoever, insofar as it is related to abuse and neglect as defined in subdivision (1) of section 488 of the Social Services Law. This definition includes, but is not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.5 Record requests

(a) The Justice Center shall receive, process and respond to requests for access to facility or provider agency records in accordance with this Part.

(b) All requests to inspect or copy records shall be made in writing and shall reasonably describe the records to which access is being sought. Such requests shall be directed to the Justice Center records access officer at the address indicated on the Justice Center website.

(1) the name, mailing address, phone number and electronic mail address, if any, of the requester;

(2) the name and address or other identifying information of the facility or provider agency from which the records are sought; and

(3) a description of the nature and content of the record sought to be disclosed sufficient to enable the facility or provider agency and the Justice Center to identify responsive records.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.6 Record request processing

(a) As soon as practicable after receipt of a request for facility or provider agency records, the Justice Center shall notify the applicable facility or provider agency of the request and shall request such facility or provider agency to begin a search for any responsive records.

(b) Within 10 calendar days from the first business day following the receipt of the request for facility or provider agency records, the Justice Center shall issue an acknowledgement of the request, which may include an approximate date upon which the request will be granted or denied, and/or a request for clarification or further particularization of the types of records the requestor is seeking.

(c) Within a reasonable time thereafter, as determined by the complexity of the request, the volume of records, the ease or difficulty for the facility or provider agencies to locate or retrieve records, the need to review records to determine the extent to which they must be disclosed or other circumstances, the Justice Center shall make the records available to the person requesting them or deny the request for the records.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.7 Provider duties and responsibilities

(a) Facility and provider agencies shall respond to Justice Center inquiries and requests for records in a timely manner and to the extent disclosure is authorized by Federal and State law, and shall keep the Justice Center informed of any difficulties or delays in retrieving potentially responsive records.

(b) In providing records to the Justice Center for purposes of this Part, a facility or provider agency may use any appropriate means of transmittal, including electronic mail and electronic document transfers, taking appropriate measures to ensure confidentiality of communications. However, the Justice Center shall have access to the original records in possession of the facility or provider agency whenever it deems it necessary, taking into account the need for the facility or provider agency to maintain such records for provision of services to individuals in its care.

(c) The facility or provider agency shall produce any potentially responsive records to the records access officer of the Justice Center.

(d) The Justice Center shall advise the applicable State oversight agency when a facility or provider agency does not comply with their duties and responsibilities under this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.8 Record review and exemptions from disclosure

(a) As soon as practicable after receipt of potentially responsive records, the Justice Center shall review the records provided to it and make its determination regarding redactions of information contained in such records and exemptions from disclosure of those records consistent with the exemptions to disclosure contained in article 6 of the Public Officers Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.9 Decisions

(a) Grants of requests for disclosure of records shall be in writing and shall indicate the manner of production.

(b) Denials of requests for records shall be in writing and shall state the basis of the decision. The denial shall also inform the requester of the opportunity to appeal the decision to the Executive Director of the Justice Center.

(c) Where no responsive records exist, or the facility or provider agency has been unable to locate responsive records, the decision shall so state.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.10 Fees

(a) Fees for the production of records pursuant to this Part shall be charged as follows:

(1) The requester shall be charged no more than 25 cents per page per photocopy. At the Justice Center's discretion, photocopying fees may be waived in any case.

(2) Photocopying costs incurred by the facility or provider agency in making records available to the Justice Center for review shall be factored into the calculation of the cost of producing the record.

(3) There shall be a one-time charge for processing responses provided in electronic form in accordance with paragraph (c) of subdivision (1) of section 87 of the Public Officers Law.

(4) If the records copying process exceeds two hours of employee time, additional charges may be levied in accordance with paragraph (c) of subdivision (1) or section 87 of the Public Officers Law. Included in this calculation will be the time and cost to the facility or provider agency to reproduce records for Justice Center review.

(5) In any event the requester will be advised of the total amount of the fees due, prior to the provision of the records.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.11 Records access

(a) Records that the Justice Center determines are subject to disclosure shall be made available in the following manner, respecting the requester's preference as to the medium of reproduction if such copy can reasonably be made.

(1) To the extent practicable, records requested by electronic means shall be provided in like form to the requester upon payment of any fees for production, as required under this Part.

(2) Photocopied records shall be provided to the requester by mail at the physical or electronic address provided upon payment of the fees for production, as required under this Part.

(3) Records determined to be subject to disclosure by the Justice Center, may be inspected at the Justice Center's main offices by the requester, as indicated on the Justice Center website and during weekday business hours when the records access officer is present.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 703.12 Appeal

(a) Any person denied access to a record under this Part may, within 30 days of such denial, appeal to the Executive Director of the Justice Center.

(b) The time for deciding an appeal shall commence upon receipt of a written request for appeal that identifies the record that is the subject of the appeal and the name and return address of the appellant. The written request may include reasons why such record should be disclosed.

(1) provide access to the record; or

(2) explain in writing the factual and statutory reasons for denial of access to the record; and

(3) inform the individual of the right to seek judicial review of such determination pursuant to article 78 of the Civil Practice Law and Rules.

Part 704 Incident Review Committee Requirement

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.1 Background and intent

(a) The Protection of People with Special Needs Act (the Act), enacted as chapter 501 of the Laws of 2012, seeks to create durable, consistent safeguards for vulnerable persons to protect against abuse, neglect and other conduct that may jeopardize their health, safety and welfare.

(b) To accomplish this goal, the Act provides that each state oversight agency as defined in the Act establish procedures and requirements relating to incident management programs, including establishment of incident review committees, and authorizes the State oversight agency to grant an exemption from this requirement when appropriate, based on the size of the facility or provider agency or other relevant factors.

(c) This regulation identifies appropriate methods that may be used to attain compliance with the incident review committee requirement and further defines relevant factors to consider in determining whether it is appropriate to grant an exemption from the incident review committee requirement.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.2 Applicability

This regulation applies to State oversight agencies as defined in subdivision (4-a) of section 488 of the Social Services Law, and facilities and provider agencies, as defined in subdivision (4) of section 488 of the Social Services Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.3 Legal authority

(a) Section 490 of the Social Services Law mandates that each State oversight agency as defined in the Act promulgate regulations that contain procedures and requirements consistent with guidelines and standards developed by the Justice Center, relating to incident management programs, including establishment of an incident review committee, and permits authorization of an exemption from the incident review committee requirement when appropriate.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.4 Definitions

Whenever used in this Part:

(a) State oversight agency shall have the same meaning as expressed in subdivision (4-a) of section 488 of the Social Services Law.

(b) Facility or provider agency shall have the same meaning as expressed in subdivision (4) of section 488 of the Social Services Law.

(c) Vulnerable person shall have the same meaning as expressed in subdivision (15) of section 488 of the Social Services Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.5 Appropriate methods to attain compliance with incident review committee requirement

(a) A State oversight agency may allow a facility or provider agency's incident review committee to be shared with another facility or provider agency or performed by another facility or provider agency on its behalf if a facility or provider agency is co-located within another organization or agency, or is part of a larger organization or agency, or has a larger parent or umbrella organization or agency. A State oversight agency may also allow compliance with the incident review committee requirement in circumstances where a facility or provider agency is able to combine with one of more others to form a shared committee, or where an appropriate sponsor is able to form an incident review committee for the facility or provider agency.

(b) A State oversight agency may allow additional time for a facility or provider agency to comply with the incident review committee requirement, if the facility or provider agency shows that good faith efforts have been made to fulfill the incident review committee membership requirement.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.6 Authorization to establish exemption from incident review committee requirement and relevant factors

(a) Each State oversight agency is authorized to establish in its discretion an exemption from the incident review committee requirement and grant an exemption from the requirement pursuant to paragraph (f) of subdivision (1) of section 490 of the Social Services Law when appropriate.

(b) State oversight agencies that authorize an exemption to the incident review committee requirement may consider the following in determining whether to grant a facility or provider agency an exemption including, but not limited to:

(1) size of the facility or provider agency, nature of the program, size of the program, and whether the program is a seasonal program or is operational year round; and, if the program is a seasonal program, the length of the season;

(2) existence of a larger parent facility or agency, or a parent facility or agency with a year round presence that can form an incident review committee.

(c) In order to authorize an exemption from the incident review committee requirement, risk of harm to the vulnerable person must be considered, and a determination must be made that compliance with the requirement would result in undue hardship to the facility or provider agency.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.7 Procedure for authorizing exemption from incident review committee requirement and renewal of request

(a) Each State oversight agency shall be authorized to establish an application procedure for a facility or provider agency to follow when seeking an exemption from the incident review committee requirement and if such procedure is established, the facility or provider agency shall be required to provide sufficient documentation and information to demonstrate that the exemption should be granted.

(b) Each State oversight agency shall be authorized to establish an internal procedure for granting an exemption to the incident review committee requirement without requiring an application, where the exemption is based upon a particular classification or type of facility or provider and the state oversight agency determines upon its own review that such an exemption is appropriate.

(c) If an exemption to the incident review committee requirement is established, the State oversight agency shall determine the length of time that an approved exemption shall remain in effect, the circumstances for revocation of approval, and the procedure for renewal, if required.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 704.8 Alternative requirements

(a) A State oversight agency authorizing an exemption from the incident review committee requirement shall establish a process to ensure appropriate review and evaluation of any reportable incidents that occur in the exempt facility or provider agency and responses to such incidents.

Part 705 The Justice Center Protocols for Interviewing People Who Receive Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 705.1 Background and Intent

(a) The Protection of People with Special Needs Act (the "Act ") established the Justice Center for the Protection of People with Special Needs (the "Justice Center"). The Act charges the Justice Center with establishing consistent safeguards for vulnerable persons to protect against abuse, neglect and other conduct that may jeopardize their health, safety and welfare.

(b) To accomplish this goal, the Act requires the Justice Center to establish procedures for the timely response to, and effective investigation of, allegations of reportable incidents against individuals who receive services. During the course of an investigation of abuse and neglect it is often necessary for individuals who receive services to be interviewed. This regulation outlines the procedures developed by the Justice Center to ensure that interviews of individuals who receive services during the course of an investigation of alleged abuse and neglect are conducted in a safe and appropriately sensitive manner.

History

Adopted New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 705.2 Applicability

This regulation applies to all investigations of alleged abuse and neglect conducted by the Justice Center, as well as investigations conducted by state agencies whose programs are under the jurisdiction of the Justice Center and by the facilities and programs defined in section 488 (4) of the Social Services Law when acting as the delegate investigatory entity.

History

Adopted New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 705.3 Legal authority

Subdivision 28 of section 553 of the Executive Law requires the Justice Center to develop protocols to ensure the safety of individuals receiving services who may have evidence relevant to an investigation of alleged abuse or neglect and requires that the protocols be developed in consultation with the Justice Center's statutorily created advisory council and the relevant State oversight agencies. These agencies include: the Office of Mental Health, the State Education Department, the Office of Alcoholism and Substance Abuse Services, the Office for People With Developmental Disabilities, the Office of Children and Family Services and the Department of Health.

History

Adopted New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 705.4 Definitions

Whenever used in this Part:

(a) "Delegate Investigatory Entity" shall mean a facility or provider agency, or any other entity authorized by the regulations of a state oversight agency or the Justice Center to conduct an investigation of a reportable incident.

(b) "Justice Center" means the Justice Center for the Protection of People with Special Needs.

(c) "Personal Representative" shall mean a person authorized under state, tribal, military or other applicable law to act on behalf of a vulnerable person in making health care decisions or, for programs that serve children under the jurisdiction of the State Education Department or the Office of Children and Family Services, the service recipient's parent, guardian or other person legally responsible for such person as defined in subdivision 10 of section 488 of the Social Services Law. For other programs that serve children, the personal representative of the child would be the parent, guardian or other person authorized under law to make health care decisions.

(d) "Potential Witness" shall mean any service recipient known to be physically present in the place and at the time of the alleged abuse or neglect. It can also include any service recipient who it is believed may have information that could be useful to an investigation.

(e) "Service Provider" shall mean a provider of services as defined in subdivision 4 of section 488 of the Social Services Law.

(f) "Service Recipient" shall mean an individual who resides or is an inpatient in a residential facility or who receives services from a facility or provider agency, as defined in subdivision 9 of section 488 of the Social Services Law.

(g) "Confidential information" shall mean information that is protected from disclosure to a personal representative by any federal or state law or regulation.

History

Adopted New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 705.5 Notification Protocols

(a) Process for providing notification to alleged victims and/or their personal representatives.

(1) When a service provider is notified that a report of alleged abuse or neglect in their program has been accepted by the Justice Center, the service provider or state oversight agency, as appropriate, shall immediately attempt to notify any service recipients who are alleged victims of that alleged abuse or neglect, and/or their personal representatives, that the service recipient may be interviewed as part of the investigation. This notification may be completed through oral communication or in writing.

(2) The service provider or state oversight agency shall not make such notification to a personal representative if the alleged victim objects to such notification or if it would violate relevant confidentially laws, be contrary to court order, or is otherwise contrary to the best interests of the alleged victim or if the investigator has notified the service provider or state oversight agency that such notification would compromise the investigation. Objections by a service recipient to a personal representative being notified should be reviewed on an individual basis consistent with the existing standards that the relevant state oversight agency requires to be used to determine the ability of a service recipient to consent to services, programs and treatment. Service providers who are required to provide notifications pursuant to section 33.23 of the Mental Hygiene Law shall do so regardless of the exemptions outlined here.

(3) The service provider or state oversight agency shall document in writing that such notification was made or that there was a diligent effort to make such notification. If an alleged victim's personal representative is not notified for the reasons outlined in Part 705.5(a)(2), the service provider or state oversight agency shall document the reason. All such documentation shall be maintained in a consistent manner and be readily available for inspection upon request of the Justice Center or a state oversight agency. Service providers and state oversight agencies shall make this information available immediately upon request of the investigator.

(b) Process for providing notification to potential witnesses and/or their personal representatives.

(1) When a service provider is notified that a report of alleged abuse or neglect in their program has been accepted by the Justice Center, the service provider or state oversight agency, as appropriate, shall make a good faith effort to ascertain whether any service recipients in its program are potential witnesses to such incident, and shall attempt to notify those service recipients and/or their personal representatives that the service recipient may be interviewed as part of the investigation. This notification may be completed through oral communication or in writing.

(2) The service provider or state oversight agency shall not make such notification to a personal representative if the potential witness objects to such notification or if such notification would violate relevant confidentially laws, be contrary to court order, or is otherwise contrary to the best interests of the potential witness or if the investigator notifies the service provider that such notification would compromise the investigation. Objections by a service recipient to a personal representative being notified should be reviewed on an individual basis consistent with the existing standards that the relevant state oversight agency requires to be used to determine the ability of a service recipient to consent to services, programs and treatment.

(3) The service provider or state oversight agency shall document in writing that such notification was made or that there was a diligent effort to make such notification. If a potential witness' personal representative is not notified for the reasons outlined in Part 705.5(b)(2), the service provider or state oversight agency shall document the reason. All such documentation shall be maintained in a consistent manner and be readily available for inspection upon request of the Justice Center or a state oversight agency. Service providers and state oversight agencies shall make this information available immediately upon request of the investigator.

(4) If the personal representative of a potential witness is contacted, the service provider or state oversight agency shall not disclose confidential information regarding the allegation of abuse or neglect to the personal representative.

(c) Inquiry of personal representative. The service provider shall ask the personal representative if they have additional information not known to the service provider concerning the most effective ways to communicate with the service recipient to support the interview process.

(d) Exceptions to notification requirements.

(1) Those service providers who are required to provide notifications pursuant to section 33.23 of the Mental Hygiene Law are not required to provide additional notification pursuant to this regulation.

(2) If an alleged victim or potential witness does not have a personal representative, there is no need for a service provider to comply with these notification and documentation requirements pertaining to personal representatives.

History

Adopted New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 705.6 Interview Protocols

(a) Determinations regarding appropriateness of conducting an interview.

(1) Prior to commencing an interview, an investigator must determine if the interview can be conducted in a safe, sensitive and timely manner. To make this determination, an investigator may consider any relevant facts or circumstances, including: the setting where and circumstances under which the interview is to be conducted; the opinion of a service recipient's personal representative; the service recipient's diagnosis; any information received after consulting with the service recipient's licensed health professionals; information in the service recipient's files; observations of the service recipient's behavior; information obtained from service provider employees; the service recipient's capability to provide information to assist the investigation; and information obtained from engaging in preliminary inquiries with service recipients to establish that proceeding with an interview would be appropriate.

(2) A formal clinical assessment is not required prior to interviewing a service recipient.

(3) If conducting an interview of the service recipient would be clinically contraindicated, despite the provision of appropriate accommodations, the interview shall not take place, except where circumstances exist which support a determination that there exists an overriding health and safety need to proceed with the interview. Such circumstances may include but not be limited to: an investigator reasonably believes that a service recipient has information relevant to maintaining or securing the safety of service recipients and is capable of reliably communicating that information; an investigator reasonably believes that failure to interview a service recipient may allow for the destruction of evidence or for a subject to evade law enforcement; or a delay in interviewing a service recipient may allow a subject to evade law enforcement. Prior to proceeding with the interview, the investigator shall consult with and obtain approval of their supervisor. Further, such investigator shall document in the investigative record the reason why it was appropriate to proceed with the interview and include the steps taken to protect the service recipient's health, safety, and wellbeing during the interview.

(b) Information from a service provider.

(1) An investigator must notify a service provider if they will need specific information from a service provider to determine whether to proceed with an interview, including the identity of any additional service recipient witnesses for whom the service provider did not make the required notification as set forth in section 705.5(b)(1) of this Part.

(2) The service provider shall supply the Justice Center or the delegate investigatory entity with the requested information within 72 hours of receiving such notification from an investigator.

(3) The requested information may be conveyed verbally or in writing.

(c) Communication. If an investigator determines that a service recipient may have difficulty comprehending questions due to linguistic or other barriers, such investigator shall work with a service provider to provide the service recipient with the means to communicate with the investigator.

(d) Personal Representative Presence at an Interview.

(1) A personal representative may be permitted to accompany a service recipient who is an alleged victim or a potential witness during an interview, except when:

(i) the service recipient objects to the personal representative being present during the interview; or

(ii) the investigator believes the presence of the personal representative would impede the investigation. Objections by a service recipient to a personal representative being present during an interview should be reviewed on an individual basis consistent with the existing standards that the re levant state oversight agency requires to be used to determine the ability of a service recipient to consent to services, programs and treatment.

(2) When a service recipient is being interviewed as a potential witness, the investigator should be especially sensitive to the presence a personal representative if the service recipient witness will be questioned about injuries or other confidential information relating to the alleged victim of abuse or neglect. In any instance in which confidential information will be discussed, the investigator may require that:

(i) the personal representative leave the interview during the time in which confidential information is discussed; or

(ii) the personal representative be present outside the interview room or available by telephone, to provide any needed support to the service recipient during the interview process.

(3) If a personal representative is allowed to be present during an interview, the personal representative may not interfere with the interview. If an investigator believes that the personal representative is interfering with the interview, the investigator may take appropriate actions to prevent such interference, including speaking with the personal representative or stopping the interview. If an investigator determines that a personal representative should not be present or should leave an interview once it is underway, the investigator must document the rationale for such decision in the investigative record.

(4) If a personal representative cannot attend an interview in a timely manner, the service provider may provide appropriate technology to allow the personal representative to participate in the interview. This may entail the use of a conference call line or a video conference, if available. An investigator shall not be required to unreasonably delay an interview to allow for a personal representative to participate.

(e) Information for service recipients. Prior to beginning an interview with a service recipient, the investigator shall advise service recipients and/or their personal representatives about what to expect in an interview. The investigator shall explain that participation in an interview is voluntary. In addition, and as applicable, the investigator shall advise the service recipient and/or their personal representative about searches of the service recipient's personal property and searches of the service recipient's person for the purposes of non-criminal investigations.

History

Adopted New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018

Part 710 Procedures Of The Surrogate Decision-making Committee Of The New York State Justice Center For The Protection Of People With Special Needs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.1 Background and intent

(a) The purpose of this Part is to set forth uniform procedures for the surrogate decision-making committee established by article 80 of the Mental Hygiene Law (MHL).

(b) Article 80 of the MHL requires the Justice Center to administer a statewide quasi-judicial process for patients in need of surrogate decision-making as defined in section 80.03(b) of the MHL to assess:

(1) a patient's capacity to consent to or refuse major medical treatment, and

(2) whether there is an available and willing surrogate to make the decisions, and

(3) whether the proposed treatment promotes the patient's best interests.

Article 80 of the MHL authorizes panels organized by the surrogate decision-making committee to consider proposed major medical treatments on behalf of qualifying patients.

(c) Article 17-A of the SCPA authorizes panels organized by the surrogate decision-making committee to consider proposed end-of-life decisions on behalf of qualifying patients . Section 1750-b of the SCPA requires the Justice Center to establish procedures to assess:

(1) a patient's capacity to consent to or refuse the withholding or withdrawing of life-sustaining treatment, and

(2) whether the proposed decision promotes the patient's best interests.

(d) The surrogate decision-making committee provides another means to obtain informed consent when a qualifying patient lacks decision-making capacity and has no surrogate decision maker willing or able to make the decision. This program is intended to serve as an alternative means to the court system for obtaining medical consent and will not prevent applications to a court to obtain consent in the absence of, or prior to a review of the case, by a surrogate decision-making committee or panel. The program is available in all sixty-two counties of New York State.

(e) The surrogate decision-making committee organizes volunteer panels to make determinations regarding proposed major medical treatments for qualifying patients, including the capacity of the qualifying patient to make such a decision, the availability and willingness of an alternative surrogate decision maker, and the best interests of the qualifying patient. The Justice Center determines the staff and assistance available to the SDMC program. In providing such staff and assistance, the Justice Center may enter into agreements with not-for-profit organizations including but not limited to community dispute resolution centers, as defined by article 21-A of the Judiciary Law. Staff of such organizations shall be considered public officers for the purposes of sections 17, 19 and 74 of the Public Officers Law (POL).

History

Adopted New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.2 Legal Authority

(a) Article 80 of the MHL requires the Justice Center to administer a statewide quasi-judicial process with panels organized by the surrogate decision-making committee to consider proposed major medical treatments on behalf of qualifying patients.

(b) Article 17-A of the Surrogate's Court Procedures Act (SCPA) authorizes panels organized by the surrogate decision-making committee to consider proposed end-of-life decisions on behalf of qualifying patients as defined in article 17-A of the SCPA.

(c) Section 1750-b of the SCPA requires the Justice Center to establish committee procedures to assess a patient's capacity to consent to or refuse the withholding or withdrawing of life-sustaining treatment, and to assess whether the proposed decision promotes the patient's best interests.

(d) Subdivision (15) of section 553 of the Executive Law authorizes the Justice Center to administer the surrogate decision-making committee program, as authorized pursuant to article 80 of the MHL.

History

Adopted New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.3 Definitions

(a) Attending physician means the physician, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient. Where more than one physician shares such responsibility, or where a physician is acting on the attending physician's behalf, any such physician may act as the attending physician.

(b) Best interest means promoting the patient's well-being by considering the risks, benefits and alternatives to the patient of a proposed medical decision.

(1) For the purposes of making a major medical treatment decision pursuant to article 80 of the MHL, such a determination takes into account the following: the relief of suffering; the preservation or restoration of functioning; the improvement in the quality of the patient's life with and without the proposed major medical treatment; and consistency with the personal beliefs and values known to be held by the patient.

(2) For the purposes of making a decision to withhold or withdraw life-sustaining treatment pursuant to article 17-A of the SCPA, such a determination takes into account the following: the dignity and uniqueness of every person; relief of suffering by means of palliative care and management; the unique nature of artificially provided nutrition or hydration, and the effect it may have on the patient; and the entire medical condition of the patient.

(c) Conflict of interest means an association, including a financial or personal association, which precludes the participation of a panel member in the proceedings with regard to a patient. In general, any member who has any interest, financial or otherwise, direct or indirect, or engages in any business or transaction or professional activity or incurs any obligation or receives any benefit of any nature which is in conflict with the impartial discharge of their duties as a panel member shall neither be assigned to the panel considering the case nor vote upon its disposition. A panel member will be precluded whenever the panel member:

(1) is a relative of the patient;

(2) has served as a board member, officer, employee, or otherwise has been affiliated with the facility where the patient resides or receives services; provided, however, that a member of a board of visitors may serve on a panel for a patient served by the psychiatric center or developmental disabilities services office to which the board of visitors member is assigned, absent any close affiliation or affinity;

(3) has provided health services or has been an officer, board member or employee of any provider of health services to the patient; provided, however, that health care professionals are not precluded from serving on a panel wherein the patient is known to be served by another provider within the same health care network or parent corporation or entity, absent any close affiliation or affinity;

(4) has engaged in any business or has been an officer, board member or employee of any corporation, association, partnership or joint venture which has transacted business with the facility where the patient resides; or has recently received a gift of significant value from the facility where the patient resides; or

(5) is a relative of another panel member.

In general, any member who has any interest, financial or otherwise, direct or indirect, or engages in any business or transaction or professional activity or incurs any obligation or receives any benefit of any nature which is in conflict with the impartial discharge of their duties as a panel member shall neither be assigned to the panel considering the case nor vote upon its disposition.

(d) Correspondent means a person who has demonstrated a genuine interest in promoting the well-being of a patient by having a personal relationship with the patient, by participating in the planning of a patient's services, by regularly visiting the patient, or by regularly communicating with the patient. Regular communication includes communication more than once a year on the topic of the patient's well-being or planning of the patient's services, and does not include communication such as holiday or birthday greetings.

(e) Declarant means a person who submits a declaration seeking a major medical treatment decision on behalf of a patient, or seeking a decision to withhold or withdraw life-sustaining treatment on behalf of a patient. Such persons may include the director of the patient's residential facility or their designee or staff member, the patient's service coordinator, physicians, dentists, staff of hospitals as defined in article 28 of the Public Health Law (PHL) , or a relative or correspondent of the patient.

(f) Developmental disability means a disability, as defined in section 1.03 of the MHL.

(g) Justice Center means the New York State Justice Center for the Protection of People with Special Needs (Justice Center), a State agency created by article 20 of the Executive Law.

(h) Legal guardian means an individual or agency appointed by the court to serve as a guardian of the person of an infant pursuant to article 17 of the SCPA, or a guardian of the person of an individual with a developmental disability pursuant to article 17-A of the SCPA, or a guardian authorized to make health care decisions for a person pursuant to article 81 of the MHL. For the purposes of this Part, legal guardian also includes a committee of the person appointed by the courts pursuant to article 78 of the MHL, now repealed, and a conservator appointed by the courts pursuant to article 77 of the MHL, now repealed.

(i) Life-sustaining treatment means medical treatment, including cardiopulmonary resuscitation and nutrition and hydration provided by means of medical treatment, which is sustaining life functions and without which, according to reasonable medical judgment, the patient will die within a relatively short period of time. Cardiopulmonary resuscitation is presumed to be life-sustaining treatment without the necessity of a medical judgment by an attending physician.

(j) Major medical treatment means a medical, surgical, or diagnostic intervention or procedure as defined in section 80.03(a) of the MHL, including any such intervention or procedure that involves hospice admission pursuant to article 40 of the PHL. Major medical treatment includes any professional diagnosis or treatment in which informed consent is required by law.

(k) Mental Hygiene Legal Services (MHLS) means a program under the jurisdiction of the judicial branch of government and which provides legal assistance to patients pursuant to article 47 of the MHL.

(l) Minor means a person who has not attained the age of 18 years, unless each of the minor's parents satisfy one of the following conditions: the parent's parental rights have been legally terminated; the parent is deceased; the parent has indicated their willingness to allow the panel to proceed.

(m) Panel means a group of four members; however, nothing in this Part shall preclude the panel from operating with less than four members in accordance with section 80.05(g) of the MHL and section 710.5(a)(6) of this Part. A panel shall include members from each of the following groups:

(1) physicians, nurses, psychologists, or other health care professionals licensed by New York State;

(2) former patients as defined in section 80.03(b) of the MHL, parents, spouses, adult children, siblings or advocates of persons with developmental disabilities;

(3) attorneys admitted to the practice of law in New York State; and

(4) other persons with recognized expertise or demonstrated interest in the care and treatment of persons with developmental disabilities.

(n) Panel chairperson means the person designated by the surrogate decision-making committee program or its designee. The panel chairperson serves at the pleasure of the surrogate decision-making committee program.

(o) Patient means a patient in need of surrogate decision-making as that term is defined in section 80.03(b) of the MHL.

(p) Providers of health services means: individuals, associations, corporations, or public or private agencies other than State agencies, providing services to persons with developmental disabilities; facilities operated by OASAS, OMH, or OPWDD, except in family care homes; hospitals as defined in article 28 of the PHL; and dentists and physicians.

(q) Program staff means employees of the Justice Center who administer the surrogate decision-making committee, or a designee.

(r) Service coordination provider means an employee of any agency, or an independent contractor or other party so designated, who provides active assistance to patients as they access and negotiate the various service systems in pursuit of the necessary and desired services and supports to achieve and maintain their personal goals.

History

Renumbered from 710.2 New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.5 Procedures of the surrogate decision-making committee program and panels

(a) Upon receipt of the declaration, the procedures of the program staff are as follows:

(1) The program staff or its designee shall send a copy of the declaration to the following interested parties as set forth in the declaration: the patient; any authorized surrogate outlined in Mental Hygiene Law section 80.07(b) for decisions regarding major medical treatment; any authorized surrogate as outlined Surrogate's Court Procedure Act section 1750-b(1) (a) (ii) (B) for decisions to withhold or withdraw lifesustaining treatment; correspondent, if known; the director of the patient's residential facility or such director's designee; and the Mental Hygiene Legal Service (MHLS) departmental office that serves the same region as the patient's county of residence.

(2) Copies of the declaration shall be sent along with a notice of hearing which shall inform recipients of the procedures of the panel, including the opportunity for the recipient to be heard. The Justice Center shall determine the venue or format for the hearing based on the totality of the circumstances, which may include video conference, telephone, or other technology that allows for remote participation. In making such determination, the Justice Center shall consider any requests for an in-person hearing from participants.

(3) A surrogate, or correspondent who does not respond to the notice or who submits a signed waiver for the proceeding shall be deemed to be willing to allow the panel to proceed; provided, however, that parents of minors who have not had their parental rights terminated must submit a waiver to indicate their willingness to allow the panel to consider the declaration.

(4) The hearing shall be scheduled no earlier than five days after the notice of hearing is sent by the program staff to the interested parties set forth in (a)(1) of this section, except where medical or dental circumstances require a more immediate hearing, or where consent to conduct a more immediate hearing has been obtained from all of the interested parties. When the interested parties have consented to a more immediate hearing, a hearing shall be scheduled at the earliest convenience.

(5) The program staff shall assign the declaration to one of the committee's panels and shall send a copy of the declaration and any supporting documents to the members of the designated panel. Confidential information regarding AIDS, HIV infection or related virus or illness shall be sent to the panel and to MHLS on behalf of the patient. Such confidential information shall also be sent to any other person only if necessary to provide for appropriate review by the committee; provided, however, that any such disclosure shall include a notice of the confidential nature of the information and the penalties for unauthorized disclosure as provided for by PHL article 27-F.

(6) The panel proceedings may be conducted with only three persons. Provided, however, if a program staff receives reasonable notice at least 48 hours prior to the hearing that a panel member will not be able to attend a panel hearing, program staff shall take reasonable steps to secure an appropriate replacement panel member.

(i) Repealed.

(ii) Repealed.

(7) Prior to the date of the hearing, the declaration shall be preliminarily reviewed by program staff to ascertain whether additional information may be necessary to assist the panel in determining the patient's need for surrogate decision-making and in determining whether the patient's best interests will be served by the proposed major medical treatment or end-of-life decision on the patient's behalf. The program staff may request and shall, notwithstanding any other law to the contrary, be entitled to receive from any physician, mental hygiene facility, health care facility or person licensed to render health care, any information which is relevant to the patient's need for surrogate decision-making or the proposed decision. Such information may include, among other things: facts regarding the patient's parents, spouse, adult child, legal guardians, or other authorized surrogates; facts and professional opinions regarding the patient's capacity to make the proposed decision; and facts and professional opinions regarding whether the proposed major medical treatment decision is in the patient's best interests.

(b) The general procedures of the hearing are as follows:

(1) The hearing shall be conducted by the panel. Recipients of the declaration, as well as any other person requested by the patient to appear on their behalf, shall have the right to be present and be heard.

(2) The facility where the patient resides shall, to the extent possible, ensure the presence of the patient at the hearing unless the declaration contains a certification by a physician, podiatrist, or dentist that the patient is unable for medical reasons to attend the hearing or unless it is a declaration regarding the withdrawal or withholding of life-sustaining treatment. To the extent practicable, the patient should be accompanied by a person who is personally familiar with the patient, their condition and their history. If the patient is unable to attend the hearing or if it is a declaration regarding the withdrawal or withholding of lifesustaining treatment, the panel members shall either observe and interview the patient, or the program staff or a designee shall designate at least one panel member to observe and interview the patient prior to the commencement of the hearing.

(3) The panel shall be empowered to administer oaths to and to take testimony from any person who might assist the panel in making its decision.

(4) The panel shall be empowered to conduct its proceeding via telephone conference calls or any other technology that allows for remote participation in appropriate cases, including but not limited to cases in which:

(5) Confidential information regarding AIDS, HIV infection or related virus or illness may be disclosed as determined by the panel during the hearing if relevant to the determination of capacity or determination of need for major medical treatment; provided, however, that participants shall be provided with a notice of the confidential nature of the information and the penalties for unauthorized disclosure as provided for by article 27-F of the PHL.

(6) Formal rules of evidence shall not apply to the panel proceedings.

(7) If at any time during the pendency of a proceeding, a patient, parent, spouse, adult child, legal guardian, or other surrogate who is legally authorized to consent to or refuse such treatment on the patient's behalf, objects to the panel acting upon the declaration, the proceedings regarding such patient shall cease. Any such person's objection shall be made part of the record.

(8) When the proposed major medical treatment decision consists of more than one medical, surgical or diagnostic intervention or procedure, the panel shall be empowered to consider and give or refuse consent for each proposed intervention or procedure separately. If the panel gives consent for one or more, but not all, of the proposed interventions or procedures, the panel's record of its determination shall indicate consent or refusal for each intervention or procedure separately.

(9) When the proposed end-of-life decision consists of more than one medical, surgical or diagnostic intervention or procedure, the panel shall be empowered to consider and give or refuse consent for each proposed intervention or procedure separately. If the panel gives consent for one or more, but not all, of the proposed interventions or procedures, the panel's record of its determination shall indicate consent or refusal for each intervention or procedure separately.

(10) Where practicable, the panel shall reach its determination immediately and provide a copy of the determination to the interested parties immediately after the hearing. Notice of this determination may be given by any means that will provide timely or reliable notice. The giving of such notice shall be made part of the record.

(11) At the hearing, the panel shall be empowered to:

(i) order an independent assessment of the patient, or order information concerning the patient, including obtaining an independent opinion, where such independent assessment or opinion is determined to be necessary by the panel chairperson; or

(ii) consult with any other person who might assist in such a determination of the best interests of the patient, including ascertainment of the personal beliefs and values of the patient.

(12) Nothing in this section shall be interpreted to authorize ex parte communications during the hearing or consideration of materials, information, or opinions not presented formally at the hearing.

(c) The panel's determination of the patient's need for surrogate decision-making shall be made in accordance with the following provisions:

(1) In hearings regarding proposed major medical treatment decisions, the panel shall determine whether there is clear and convincing evidence that the patient: lacks the capacity to make the proposed major medical treatment decision; and does not have a parent, spouse, adult child, other authorized surrogate, or legal guardian, who is legally authorized, available and willing to make such a decision. Clear and convincing evidence is evidence that is highly reliable and upon which reasonable persons may rely with confidence in the probability of its correctness.

(2) In determining whether the patient lacks the capacity to make the proposed major medical treatment decision, the panel shall consider whether the patient is unable to adequately understand and appreciate the nature and consequences of the proposed major medical treatment decision, including:

(i) the burdens of the treatment to the patient in terms of pain and suffering outweighing the benefits, or whether the proposed treatment would merely prolong the patient's suffering and not provide any net benefit;

(ii) the degree, expected duration and constancy of pain with and without treatment, and the possibility that the pain could be mitigated by less intrusive forms of medical treatment including the administration of medications;

(iii) the likely prognosis, expectant level of functioning, degree of humiliation, and dependency with or without the proposed major medical treatment; and

(iv) the evaluation of treatment options, including non-treatment, and their benefits and risks compared to those of the proposed major medical treatment decision.

(3) In hearings regarding the proposed withholding or withdrawal of life-sustaining treatment, the panel shall determine whether there is clear and convincing evidence as defined in (c)(1) of this section that the patient is in need of surrogate decision-making by considering the certification by the attending physician and the consulting physician or licensed psychologist as set forth in Part 710.4(c)(2) and considering each of the factors set forth in the declaration.

(4) Unless three panel members concur in the determination that the patient is in need of surrogate decision-making, the patient shall be deemed not to need surrogate decision-making.

(5) In the event that the patient is deemed not to need surrogate decision-making because they have the capacity to consent on their own behalf, patient consent to or refusal of such treatment, if given, shall constitute legally valid consent or refusal therefor. No other consent shall be required by a provider of health services.

(d) The panel's determination regarding the appropriateness of the proposed health care decision shall be made in accordance with the following provisions:

(1) In a hearing regarding proposed major medical treatment, if a patient has been determined by the panel to be in need of surrogate decision-making, the panel shall make a determination whether the proposed major medical treatment is in the best interests of the patient based upon a fair preponderance of the evidence. A fair preponderance of the evidence is evidence that an issue is more likely true than not.

(2) In a hearing regarding the proposed withholding or withdrawal of life-sustaining treatment, if a patient has been determined by the panel to be in need of surrogate decision-making, the panel shall make a determination whether the proposed end-of-life decision is in the best interests of the patient based upon a fair preponderance of the evidence as defined in (d)(1) of this section. Decisions to withhold or withdraw life-sustaining treatment pursuant to section 1750-b of the SCPA shall include consideration of the following additional factors:

(i) the panel decision is not intended to permit suicide, assisted suicide or euthanasia;

(ii) the panel decision shall be based on the patient's qualifying medical condition, other than developmental disability, with recognition that a person with developmental disability is entitled to full and equal rights, equal protection, respect, medical care and dignity afforded to persons without developmental disabilities and without any financial considerations as such may affect the health care provider or any other party.

(3) Any evidence of an articulated preference by the patient concerning the proposed treatment shall be given full consideration by the panel.

(4) The panel's consent to major medical treatment shall state that any tissues or parts surgically removed may be disposed of or preserved by the provider of health services in accordance with customary practice.

(e) Effect of the panel determination

(1) The panel determination shall include the effective date and the expiration date. The panel may delay the effective date for up to five days in order to enable an objecting party to exercise the right of appeal. For all determinations regarding a decision to withhold or withdraw life-sustaining treatment, the panel shall not delay the effective date of its decision.

(2) A copy of any panel determination shall contain a statement describing the right to appeal and shall promptly be sent to the following parties: patient; other persons requested by the patient to appear on their behalf; declarant; patient's parent, spouse, adult child, legal guardian, other known authorized surrogates, and correspondents; the director of the patient's residential facility or designee; service coordination provider; and MHLS.

(3) In the event that a panel refuses to consent to a major medical treatment that may be considered life-sustaining, any party may submit a new declaration for consideration as a declaration for the withholding or withdrawal of life-sustaining treatment with the requisite certifications and supporting documents.

(4) In the event that a panel refuses to consent to the withholding or withdrawal of life-sustaining treatment, any party may submit a new declaration for consideration as a declaration for surrogate decision-making for major medical treatment, with the requisite supporting documents.

(5) The panel determination regarding the major medical treatment decision or the end-of-life decision shall constitute legally valid consent or refusal to such treatment in the same manner and to the same extent as if the patient were able to consent or refuse on their own behalf. No other consent shall be required by a provider of health services.

(6) A panel determination that a patient is in need of surrogate decision-making for the proposed major medical treatment decision shall not be valid for any future major medical treatment and shall not be construed or deemed valid for any other purpose or for any other future major medical treatment unless the determination applies to related or continuing treatment necessitated by the original treatment. No panel determination shall be valid after the expiration date listed in the determination, except as provided for in section 701.5(b)(4)(iii).

(7) A panel determination that a patient is in need of surrogate decision-making shall not be construed or deemed to be a determination that such patient is impaired or incompetent or incapacitated pursuant to article 81 of the MHL.

(8) No person shall be deemed to have failed to exhaust administrative remedies for commencing a legal action to obtain a major medical treatment decision because of the pending review of the case by a panel.

(f) A record of the determinations and proceedings of the panel shall be made and retained for 10 years. Such record shall include any information, record, assessment, consultation, or amendment submitted to or considered by the panel.

(1) The Justice Center, any designee, and each member of the panel shall maintain the confidentiality of records as required by sections 33.13 and 80.07(c)(1) of the MHL, article 27-F of the PHL.

(2) All information, records, assessments, consultations or amendments submitted to or considered by the panel and the panel deliberations are not subject to the Freedom of Information Law or the Open Meetings Law.

History

Renumbered from 710.4 New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.6 Right of appeal; temporary restraining order

(a) The patient, declarant, a parent, spouse, adult child, legal guardian, authorized surrogate, correspondent of the patient, the MHLS, or the director of the patient's residential facility may apply to the Supreme Court pursuant to article 78 of the CPLR for review of whether a determination by a panel is supported by substantial evidence. If a trial is required, it shall receive an immediate preference, as provided for in section 3403 of the CPLR.

(b) Within the discretion of the court, a temporary restraining order may be granted by the Supreme Court to facilitate appeal by a proper party, unless it is found by the court to be inconsistent with a need for more timely medical attention. In the event such an order is granted, the court shall conduct an expedited review of the panel's determination.

History

Renumbered from 710.5 New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.7 Panel members: status as public officers and removal for failure to attend meetings

(a) Panel members shall be reimbursed for their actual and necessary expenses and shall be considered public officers for the purpose of sections 17, 19 and 74 of the POL.

(b) A member who has failed to attend three consecutive meetings of the panel to which the member has been appointed shall be considered to have vacated their office unless the Justice Center determines that the absences should be excused. Notice of such absences shall be provided to the program staff and vacancies shall be filled in accordance with article 80 of the MHL.

(d) A member who was unable to serve because they have a conflict of interest shall not be deemed to have failed to attend the hearing regarding that declaration.

History

Adopted New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.8 Report to the Justice Center

Upon request of the Justice Center, the program staff shall provide a report on the activities of the committee and its panels containing all information requested by the Justice Center.

History

Amended New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018

Chapter XXI OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES

Part 800 Chemical Dependence Services-general Provisions

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.1 Applicability

The provisions of this Part shall apply to any program certified, funded, designated or otherwise authorized by the Office of Addiction Services and Supports (OASAS).

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.2 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the Commissioner of the Office of Addiction Services and Supports to adopt standards including necessary rules and regulations pertaining to addiction services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the Commissioner of the Office of Addiction Services and Supports to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 32.01 of the Mental Hygiene Law authorizes the Commissioner of the Office of Addiction Services and Supports 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.

(d) Section 32.07 (a) of the Mental Hygiene Law authorizes the Commissioner of the Office of Addiction Services and Supports to adopt regulations to effectuate the provisions and purposes of Article 32 of the Mental Hygiene Law.

(e) Article 15 of the Executive Law enacts the Human Rights Law prohibiting discrimination against various protected classes.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.3 Incorporation by reference

The following publications and/or federal laws and regulations are incorporated by reference where applicable to all Parts of this Chapter. Publications are filed with the Office of the Secretary of State of the State of New York, One Commerce Plaza, 99 Washington Ave., Albany, NY 12231-0001, and may be viewed at the law libraries of the New York State Supreme Court, the Legislative Library in the NYS Capitol, or viewed by appointment with the New York State Office of Addiction Services and Supports, Office of Counsel, 1450 Western Ave., Albany, NY. Copies are also available by writing to the NYS Office of Addiction Services and Supports, Office of Counsel, 1450 Western Avenue, Albany, NY 12203-3526; federal documents may be purchased from the Superintendent of Documents, Government Printing Office, Washington D.C. 20402. Copies of the Code of Federal Regulations (CFR) are also available at many public libraries and bar association libraries.

(a) "The International Statistical Classification of Diseases and related Health Problems, Tenth Revision, Second Edition" published in 2004 by the World Health Organization.

(b) "The OASAS Level of Care for Alcohol and Drug Treatment Referral Protocol 3.0" or "LOCADTR 3.0" or "level of care determination protocol", the various modules available and accompanying Guidelines for Level of Care Determination published by the Office and which is in the public domain.

(d) 42 Code of Federal Regulations Part 2, et. seq. regarding confidentiality of patient records.

(e) "The Medicare Provider Reimbursement Manual" or "HIM 15" published by the U.S. Department of Health and Human Services' Centers for Medicaid and Medicare Services and available from: Centers for Medicaid and Medicare Services, Division of Communication Services, Production and Distribution Branch, Room 577, East High Rise Building, 6325 Security Boulevard, Baltimore, MD 21207.

(f) The "American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition." Arlington, VA, published by the American Psychiatric Association, 2013.

(g) "Health Insurance Portability and Accountability Act of 1996", 45 Code of Federal Regulations Part 160 and Subparts A and E of Part 164, et. seq. (HIPAA) regarding patient records.

(h) The "Substance Use Disorder Counselor Scope of Practice" published in 2020 by the Office and which is in the public domain.

(i) The "Telehealth Standards for OASAS Designated Providers" published in 2021 by the Office and which is in the public domain.

(j) The "Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) Affirming Program Endorsement Standards for OASAS-Certified Programs" published in 2021 by the Office and which is in the public domain.

(k) The "Ambulatory Patient Groups (APG) Clinical and Medicaid Billing Guidance" published in 2021 by the Office and which is available in the public domain.

(l) The "Medicaid State Plan Children and Family Treatment and Support Services Provider Manual for Children's Behavioral Health Early and Periodic Screening and Diagnostic Treatment (EPSDT) Services", published in January 2021 by the NYS Department of Health and which is available in the public domain.

(m) The "Clinical Practice Standards for Adolescent Programs" (CPS-AP) Program endorsement standards for OASAS certified programs published in 2022 by the Office and which is available in the public domain.

(n) The "Standards for Open Access Services for OASAS Designated Providers" (OAS Standards) published in 2022 by the Office and which is available in the public domain.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.4 Definitions

The following terms are defined for purposes of all Parts of Chapter XXI of this Title, unless a term is defined and indicated as applicable only for purposes of a specific Part.

(a) "Addiction disorder" means substance use disorder as defined in this Part and/or gambling disorder as defined in this Title and/or problem gambling as defined in this Title.

(b) "Addiction services" means examination, evaluation, diagnosis, care, treatment, or rehabilitation of persons with substance use disorder, gambling disorder, or problem gambling and their families or significant others.

(c) "Approved medication" means any medication approved by state and federal authorities for the treatment of substance use disorder.

(d) "Clinical staff" is staff who provide services directly to patients as prescribed in a treatment/recovery plan; clinical staff includes licensed medical staff, credentialed or licensed staff, non-credentialed staff, and student interns.

(e) "Commissioner" means the Commissioner of the Office of Addiction Services and Supports unless otherwise indicated.

(f) "Diagnosis" for purposes of admission, treatment and level of care transition planning (discharge planning) means the identification criteria contained in the most current editions of both the International Classification of Diseases, and the Diagnostic and Statistical Manual.

(g) "Full Opioid agonist" means methadone.

(h) "Medical Director".

(1) Each program must have a physician designated by the program governing authority to be the medical director. The medical director shall be a physician licensed and currently registered as such by the New York State Education Department and shall have at least one year of education, training, and/or experience in substance use disorder services. The medical director is a physician who has overall responsibility for the following (this overall responsibility may not be delegated):

(i) medical services provided by the program;

(ii) oversight of the development and revision of policies, procedures and ongoing training for matters including, but not limited to, routine medical care, specialized services, specialized medications, medical and psychiatric emergency care, screening for, and reporting of, transmissible infections and infection in accordance with law, public health education including prevention and harm reduction;

(iii) collaborative supervision with the program director of non-medical staff in the provision of substance use disorder services;

(iv) supervision of medical staff in the performance of medical services;

(v) assisting in the development of necessary referral and linkage relationships with other institutions and agencies including, but not limited to, general or specialty hospitals and nursing homes, health-related facilities, home health agencies, hospital outpatient departments, diagnostic and treatment facilities, laboratories and related resources;

(vi) ensuring program compliance with all federal, state and local laws and regulations.

(2) All medical directors, whether full-time or part-time, other than medical directors in place as of the effective date of this regulation, must hold a board certification in addiction medicine from a certifying entity appropriate to their primary or specialty board certification. Physicians may be hired as probationary medical directors if not so certified but must obtain certification within four (4) years of being hired. In addition, the medical director must have a federal DATA 2000 waiver to prescribe buprenorphine.

(3) The medical director may serve as medical director of more than one program certified by the Office.

(i) "Medical staff" means physicians, nurse practitioners, registered physician assistants, and registered nurses licensed and certified by the State Education Department practicing within the scope of, and in accordance with, the terms and conditions of such licenses and certifications, and working with, or under the supervision of a physician, or other medical professional if required by law.

(j) "Medication for addiction treatment" (MAT) means treatment of substance use disorder i.e., substance use disorder and concomitant conditions with medications requiring a prescription or order from an authorized prescribing professional.

(k) "Multi-disciplinary team" means a team of health professional staff including, at a minimum, one medical staff member (where applicable) as defined in this section, one credentialed alcoholism and substance abuse counselor (CASAC) and one other staff member who is a qualified health professional as defined in this section in a discipline other than alcohol and substance use disorder counseling. If the treatment service has a gambling designation on their operating certificate, the multi-disciplinary team must include Qualified Problem Gambling Professional (QPGP), consistent with this Chapter.

(l) "Naloxone emergency overdose prevention kit" means a kit as prescribed or distributed pursuant to state law and is used to reverse an opioid overdose.

(m) "Office" or "OASAS" means the New York State Office of Addiction Services and Supports.

(n) "Opioid agonist" means methadone or buprenorphine and/or buprenorphine/naloxone, or any other agonist medication that may be approved by the federal or state government for the treatment of opioid use disorder.

(o) "Opioid antagonist" for purposes of substance use disorder treatment medication means naltrexone. Opioid antagonist for purposes of overdose prevention medication means naloxone.

(p) "Partial Opioid agonist" means buprenorphine and/or buprenorphine/naloxone.

(q) "Peer advocate" is a Certified Recovery Peer Advocate (CRPA) who holds a certification from a certifying authority recognized by the Commissioner.

(r) "Prescribing professional" is any medical professional appropriately licensed under New York State law and registered under federal law to prescribe approved medications.

(s) "Program" means a location wherein a provider is authorized to provide addiction services.

(t) "Provider" means an individual, association, partnership, corporation, public or private agency governing authority, as governing authority is defined in this Part, other than an agency or department of the state, which provides addiction services via one or more Office certified, funded or otherwise authorized program.

(u) Qualified Health Professional" means any of the professionals listed below, who are in good standing with the appropriate licensing or certifying authority, as applicable, with a minimum of one year of experience or satisfactory completion of a training program in the treatment of addiction:

(1) a credentialed alcoholism and substance abuse counselor (CASAC) who has a current valid credential issued by the Office, or a comparable credential, certificate or license from another recognized certifying body as determined by the Office;

(2) a counselor certified by and currently registered as such with the National Board for Certified Counselors;

(3) a rehabilitation counselor certified by the Commission of Rehabilitation Counselor Certification;

(4) a therapeutic recreation therapist certified by the National Council on Therapeutic Recreation or the American Therapeutic Recreation Association; or a person who holds a baccalaureate degree in a field allied to therapeutic recreation and, either before or after receiving such degree, has five years of full-time, paid work experience in an activities program in a health care setting;

(5) a professional licensed and currently registered as such by the New York State Education Department to include:

(i) a physician who has received a doctor of medicine (M.D.) or doctor of osteopathy (D.O.) degree;

(ii) a physician assistant (PA);

(iii) a certified nurse practitioner (NP);

(iv). a registered nurse (RN);

(v) a psychologist;

(vi) an occupational therapist;

(vii) a social worker (LMSW; LCSW), including an individual with a Limited Permit Licensed Master Social Worker (LP-LMSW) only if such person has a permit which designates the OASAS-certified program as the employer and is under the general supervision of a LMSW or a LCSW; and

(viii) a mental health practitioner including: a licensed mental health counselor (LMHC), a marriage and family therapist (LMFT), a creative arts therapist (LCAT), and licensed psychoanalyst; and any mental health practitioner with a Limited Permit.

(v) "Quality improvement" means an ongoing process by which an addiction service systematically assesses the adequacy and appropriateness of the addiction treatment services provided to patients and provides recommendations for improvement.

(w) "Significant other" is an individual who is admitted to treatment and manifests psychological, behavioral and/or emotional effects arising from another person's substance use disorder, regardless of whether the other individual is in treatment. A significant other must be determined to be able to participate actively in and benefit from the treatment process.

(x) "Governing authority" means the provider of service or an entity that substantially controls or has the ability to control substantially the provider of service. For the purpose of this Part, factors used to determine whether there is substantial control shall include, but are not limited to, the following:

(1) the right to appoint and remove directors or officers;

(2) the right to approve bylaws or articles of incorporation;

(3) the right to approve strategic or financial plans for a provider of service; or

(4) the right to approve operating or capital budgets for a provider of service.

(y) "Student Intern" means a person enrolled in a formal educational program which could lead to a degree, certification or credential which may qualify that person as a Qualified Health Professional.

(z) "Substance use disorder" means a group of cognitive, behavioral, and physiological symptoms indicating that an individual continues using substances despite significant substance-related physical, psychological and social problems as determined through assessment and diagnosis using the most recent version of the DSM. Substance use disorder, or addiction, is a treatable, chronic medical condition. Substance use disorder treatment shall include alcoholism, alcohol abuse, substance abuse, substance dependence, chemical dependence, chemical abuse and/or chemical dependence.

(aa) "Substance use disorder services" or "chemical dependence services" shall mean and include examination, evaluation, diagnosis, care, treatment, or rehabilitation of persons with substance use disorders and their families or significant others.

(bb) "Utilization review" means a process by which a service systematically monitors the appropriateness of admissions, the need for continued stay, and the necessity for an alternative level of care.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.5 Access to Treatment

(a) Efforts to reduce disparities in access to services: Programs shall develop policies and procedures to address and make efforts to reduce disparities in access, quality of care and treatment outcomes and which prohibit discrimination on the basis of age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, marital status or disability in accordance with the NYS Human Rights Law, as well as specifically addressing policies and procedures for older adults, Veterans, individuals who are deaf & hard of hearing, individuals who are Limited English Proficient, immigrants, and individuals re-entering communities from criminal justice settings. Such policies and procedures shall include, but are not limited to the following:

(1) increasing access to care and reducing barriers in accessing care;

(2) ensuring quality of care;

(3) increasing positive treatment outcomes;

(4) implementing written policies on affirmative action which are consistent with the affirmative action and equal employment opportunity obligations imposed by state and federal law for program staff;

(5) employing staff that are proficient in the most prevalent languages spoken by services users.

(b) Priority admission. All certified programs shall have priority admission policies and procedures which establish immediate admission preference for pregnant persons, people who inject drugs, parent(s)/guardian(s) of children in or at risk of entering foster care and individuals recently released from criminal justice settings. If the individual does not meet admission criteria or is otherwise inappropriate for admission, the program rapidly must refer and engage the individual with an appropriate treatment provider.

(c) Plan of safe care. All certified, licensed or otherwise authorized programs shall offer development of a plan of safe care to any pregnant patients in accordance with guidance issued by the Office.

(d) Records retention: Patient records must be retained for ten (10) years after the date of discharge or last contact, or three (3) years after the patient reaches the age of eighteen, whichever time period is longer.

(e) All programs shall deliver services in a manner that is strength based, person centered and trauma informed.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.6 Access to Medication Assisted Treatment

(a) All programs certified pursuant to this Chapter shall facilitate expeditious access to medication assisted treatment, based on the clinical need and preference of the patient, through direct provision of the medication, contracting with private prescribing professionals or linkage agreements with other Office certified programs. Such agreements must ensure access sufficient to meet patient needs without undue barriers such as long waiting periods for appointments or waiting lists.

(b) All doctors, physician assistants and nurse practitioners employed in a treatment program certified pursuant to this Chapter must have a federal DATA 2000 waiver to prescribe buprenorphine.

(c) All programs must allow for provision of medication assisted treatment and may not deny admission based on use of medication. Programs must continue access to opioid full and partial agonist treatment and plan for the continuity of medication administration.

(d) All programs must maintain an emergency medical kit at each certified or funded location; such kit must include basic first aid and naloxone emergency overdose prevention kit(s) in a quantity sufficient to meet the needs of the program and that are available for use during all program hours of operation.

(e) Each program that dispenses medications must develop and implement a diversion control plan (DCP) as part of its quality improvement plan, such DCP must include specific measures to reduce the possibility for diversion of controlled substances from legitimate treatment use and shall assign specific responsibility to the medical and administrative staff of the program for carrying out the diversion control measures and functions described in the DCP.

(f) Programs shall provide access to Medication for Addiction Treatment (MAT) for Substance Use Disorder in accordance with this Part, the Part under which the program is certified or otherwise authorized, and guidance issued by the Office.

(1) All programs shall maintain a patient with substance use disorder on approved medication, including those federal Food and Drug Administration (FDA) approved medications to treat substance use disorder, if deemed clinically appropriate and in collaboration with the patient's existing provider, and with the patient's consent, in accordance with federal and state rules and guidance issued by the Office. The program shall document such contact with the existing program or practitioner prescribing such medications.

(2) To facilitate access to full opioid agonist medication for patients who are maintained on such medication at the time of admission or who choose to start such medication during admission, all programs shall develop a formal agreement with at least one Opioid Treatment Program (OTP) certified by the Office to facilitate patient access to full opioid agonist medication, if clinically appropriate. Such agreements shall address the program and the OTPs responsibilities to facilitate patient access to such medication in accordance with guidance issued by the Office.

(3) All programs shall provide FDA approved medications to treat substance use disorders to an existing patient or prospective patient seeking admission to an Office certified program in accordance with all federal and state rules and guidance issued by the Office.

(4) All programs shall provide education to an existing patient or prospective patient with substance use disorder about FDA approved medications for the treatment of substance use disorder if the patient is not already taking such medications, including the benefits and risks. The program shall document such discussion and the outcome of such discussion, including a patient's preference for or refusal of medication, in the patient's record.

(5) All programs shall ensure that the patient's discharge plan includes an appointment with a treatment provider or program that can continue the medication post-discharge.

(g) Programs shall provide access to overdose prevention education, training and supplies in accordance with this Part, the Part under which the program is certified, funded or otherwise authorized and/or guidance issued by the Office.

(1) All programs must maintain an emergency medical kit at each certified or funded location; such kit must include basic first aid and naloxone emergency overdose prevention kit(s) in a quantity sufficient to meet the needs of the program and that are available for use during all program hours of operation.

(2) All programs shall provide overdose prevention education and naloxone education and training to a patient or prospective patient, and their significant other(s), in accordance with guidance issued by the Office.

(3) All programs shall make available to patients and prospective patients, and their significant other(s), a naloxone kit or prescription as appropriate, in accordance with guidance issued by the Office.

History

Adopted New York State Register May 29, 2019/Volume XLI, Issue 22, eff. 5/29/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.7 Waiver

(a) The Commissioner may grant a waiver of a Part 800-series addiction services regulatory requirement not specifically required by law, if the Commissioner determines that:

(1) meeting the requirement would impose an unreasonable hardship;

(2) the health and safety of patients/residents would not be diminished; and

(3) the best interests of the patients/residents and the service would be served.

(b) In considering a request for a waiver, the Commissioner will consider such factors as the special needs of the population(s) to be served, geographic distances and transportation problems, staff availability, long range plans of the addiction services, alternatives and any other relevant information.

(c) A request for a waiver must be submitted in writing, must contain substantial documentation to support the need for the waiver, and must include such other information as the Commissioner may require.

(d) Special limits, conditions or restrictions may be established by the Commissioner in granting a waiver.

(e) A waiver shall be in effect for no longer than the time period between granting of the waiver and the conclusion of the subsequent re-certification inspection and review.

History

Adopted New York State Register February 16, 2022/Volume XLIV, Issue 07, eff. 2/16/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 800.8 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register February 16, 2022/Volume XLIV, Issue 07, eff. 2/16/2022

Part 801 Behavioral Health Organizations

N.Y. Comp. Codes R. & Regs. Tit. 14 § 801.1 Statement of purpose

The purpose of this Part is to set forth the responsibilities for providers of Part 816 Medically Managed Detoxification Services and Inpatient Medically Supervised Withdrawal Services, Part 818 Chemical Dependence Inpatient Rehabilitation Services and Part 822 Chemical Dependence Outpatient and Opioid Treatment Services of this Title regarding behavioral health organizations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 801.2 Legal base

(a) Section 19.07 (c) of the Mental Hygiene Law (MHL) charges the Office of Alcoholism and Substance Abuse Services (OASAS) with the responsibility for seeing that persons who abuse or are dependent on alcohol and/or substances and their families are provided with care and treatment that is effective and of high quality.

(b) Section 19.07(e) of the MHL authorizes the commissioner to adopt standards including necessary rules and regulations pertaining to chemical dependence treatment services.

(c) Section 19.09(b) of the MHL authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his/her jurisdiction.

(e) Section 19.21(b) of the MHL requires the commissioner to establish and enforce regulations concerning the licensing, certification, and inspection of chemical dependence treatment services.

(f) Section 19.21(d) of the MHL requires OASAS to establish reasonable performance standards for providers of services certified by OASAS.

(g) Section 19.40 of the MHL authorizes the commissioner to issue operating certificates for the provision of chemical dependence treatment services.

(h) Section 32.01 of the MHL authorizes 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 MHL.

(i) Section 32.07(a) of the MHL authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of article 32 of the MHL.

(j) Section 365-m of the Social Services Law authorizes the commissioner of OASAS and the commissioner of the Office of Mental Health, in consultation with the Department of Health, to contract with regional behavioral health organizations to provide administrative and management services for the provision of behavioral health services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 801.3 Behavioral health organization

(a) Behavioral health organization or BHO shall mean an entity selected by the commissioner of the Office of Alcoholism and Substance Abuse Services and the commissioner of the Office of Mental Health pursuant to section 365-m of the New York State Social Services Law to provide administrative and management services for the purposes of conducting concurrent review of behavioral health admissions to inpatient treatment settings, assisting in the coordination of behavioral health services, and facilitating the integration of such services with physical health care.

(b) Concurrent review shall mean the review of the clinical necessity for continued inpatient behavioral health services, resulting in a non-binding recommendation regarding the need for such continued inpatient services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 801.4 Provider obligations for part 816 and part 818 of this title services

Providers of Part 816 Medically Managed Detoxification Services and Inpatient Medically Supervised Withdrawal Services and Part 818 Chemical Dependence Inpatient Rehabilitation Services of this Title shall cooperate with their designated regional behavioral health organization. At a minimum, such cooperation shall include:

(a) notifying the appropriate behavioral health organization of an admission for a behavioral health condition for which coverage is provided by Medicaid on a fee-for-service basis to an individual who is not also enrolled in the Medicare program. Such notification shall be provided within 24 hours of such admission or, for an admission occurring on a Friday, Saturday, Sunday or public holiday, by 5:00 p.m. on the next business day following such admission. When Medicaid coverage cannot be determined at the time of admission, notification shall be provided as soon as practicably possible after confirmation of Medicaid eligibility, but in no event more than 24 hours after such confirmation or, for a confirmation made on a Friday, Saturday, Sunday or public holiday, later than 5:00 p.m. on the next business day following such confirmation;

(b) cooperating with concurrent review activities;

(c) ensuring that the discharge plan for such an individual includes consideration of physical health needs and services;

(d) notifying such behavioral health organization no later than 24 hours subsequent to the discharge of such an individual or, for a discharge occurring on a Friday, Saturday, Sunday or public holiday, by 5:00 p.m. on the next business day following such discharge; and

(e) seeking to obtain, as needed, such individual's consent to receive and provide information in a manner that is consistent with Federal and State confidentiality laws.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 801.5 Provider obligations for part 822 of this title services

Providers of Part 822 Chemical Dependence Outpatient and Opioid Treatment Services of this Title shall cooperate with designated regional behavioral health organizations and shall be authorized to exchange clinical information concerning clients with such organizations in a manner consistent with Federal and State confidentiality laws.

Part 802 VITAL ACCESS PROGRAM AND PROVIDERS

N.Y. Comp. Codes R. & Regs. Tit. 14 § 802.1 Background and Intent

The purpose of this Part is to provide a means to support the stability and geographic distribution of substance use disorder treatment services throughout all geographic and economic regions of the State. A designation of vital access provider denotes the State's determination to ensure patient access to a provider's essential services otherwise jeopardized by the provider's payer mix or geographic isolation. Vital access providers in the OASAS system are limited to eligible OASAS certified inpatient rehabilitation facilities, or such other programs as may be designated by the commissioner.

History

Adopted, New York State Register October 1, 2014/Volume XXXVI, Issue 39, eff. 9/10/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 802.2 Legal Base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the commissioner ("commissioner") of the office to adopt standards including necessary rules and regulations pertaining to chemical dependence services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 19.40 of the Mental Hygiene Law authorizes the commissioner to issue operating certificates for the provision of chemical dependence services.

(d) Section 25.09 of the Mental Hygiene Law authorizes the office to establish limits on the amount of financial support which may be advanced or reimbursed to a program for the administration of such program.

(e) Section 32.01 of the Mental Hygiene Law authorizes 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.

(f) Section 32.07 (a) of the Mental Hygiene Law authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of article 32 of the Mental Hygiene Law.

(g) Section 43.02 of the Mental Hygiene Law authorizes the establishment of rates or methods of payment for services at facilities subject to licensure or certification by the office.

(h) Section 23 of part C of chapter 58 of the Laws of 2009, authorizes the commissioner, with the approval of the Commissioner of Health and the Director of the Budget, to promulgate regulations pursuant to article 32 of the Mental Hygiene Law utilizing the APG methodology described in section 841.14(c) of this Part for the purpose of establishing standards and methods of payments made by government agencies pursuant to title 11 of article 5 of the Social Services Law for chemical dependence outpatient clinic services.

(i) Chapter 53 of the Laws of 2014 authorizes the commissioner to provide special funding to certain designated providers.

History

Adopted, New York State Register October 1, 2014/Volume XXXVI, Issue 39, eff. 9/10/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 802.3 Definitions

(a) Vital Access Program means a program of supplemental State funding and/or temporary rate adjustments available to designated vital access providers pursuant to Part 841 of this Title and the provisions of this Part.

(b) Vital Access Provider (VAP) means an OASAS certified program that is designated by the commissioner as essential but not financially viable because of its service to financially vulnerable populations and/or provision of essential services in an otherwise underserved region.

History

Adopted, New York State Register October 1, 2014/Volume XXXVI, Issue 39, eff. 9/10/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 802.5 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted, New York State Register October 1, 2014/Volume XXXVI, Issue 39, eff. 9/10/2014

Part 803 Public Access To Records

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.1 Statement of purpose

The purpose of this Part is to set forth the methods and procedures governing the nature, availability and location of those records of the New York State Office of Alcoholism and Substance Abuse Services which are covered by the Freedom of Information Law (article 6 of the Public Officers Law) and the rules of the New York State Committee on Public Access to Records (21 NYCRR Part 1401).

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.2 Definitions

As used in this Part, the following terms as defined:

(a) Business day means the regular hours that the records access office is open on any day except Saturdays, Sundays and public holidays.

(b) Record means any information kept, held, filed, produced or reproduced by, with, or for the office in any physical form whatsoever, including, but not limited to, reports, statements, examinations, memoranda, folders, files, books, brochures, manuals, pamphlets, forms, papers, designs, drawings, maps, photographs, letters, microfilms, computer tapes, discs, cartridges or other means of storing information.

(d) Records access appeals officer means the duly designated person to whom appeals from the decisions of the records access officer shall be addressed.

(e) Subject matter list means a reasonably detailed current list of all office records arranged by subject matter, regardless of whether or not such records are available to the public pursuant to section 87 (2) of the Public Officers Law, which is sufficiently detailed to permit identification of the category of any record sought.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.3 Records access officer

(a) The records access officer of the office is the Public Information Officer.

(b) All requests for access to office records shall be addressed as follows: Public Information Officer, New York State Office of Alcoholism and Substance Abuse Services, 1450 Western Avenue, Albany, NY 12203-3526.

(1) to ensure that a current subject matter list of all office records is maintained and that such list is brought up to date at least twice each year;

(2) to offer assistance to any person requesting access to office records in the identification of the record or records requested;

(3) to search for the records requested, and if unable to locate them, shall:

(i) certify that the office is not the custodian of the record requested; or

(ii) certify that, although the office is the custodian of the record requested, the record cannot be found after a diligent search;

(iii) certify that the requested record is not available because it is beyond the time period of the agency's record retention policy;

(4) to determine, after locating the records, that:

(i) the record is available for public inspection, and make it available for inspection and/or copying; or

(ii) the record is not available for public inspection for any of the reasons set forth in section 87 (2) of the Public Officers Law and deny access in accordance with section 803.8 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.4 Times and places for inspection of office records

Office records or copies thereof for which requests for access have been approved may be inspected on business days at locations specified by the records access officer between 9:00 a.m. and 4:30 p.m.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.5 Fees for copying records

(a) Except when otherwise prescribed by law, the fee for photocopying office records shall be 25 cents per page for photocopies not exceeding 9 by 14 inches, or the actual reproduction cost of any other record. However, any such fee may be waived or reduced at the discretion of the records access officer.

(b) If for any reason a photocopying machine is not available and the person requesting access to an office record requests a transcript of such record, either typewritten or handwritten, a fee for the clerical time involved in making such transcript may be charged.

(c) The fees for copies of records not covered by subdivisions (a) and (b) of this section shall not exceed the actual reproduction cost which is the average unit cost for copying a record, excluding fixed costs of the agency such as operator salaries.

(d) There shall be no fee charged for any of the following:

(1) inspection of a record;

(2) a search for any office record; or

(3) the certification of any record.

(e) The payment of any photocopying or transcribing fee for any office record shall be in the form of cash, check, bank draft or money order payable to the New York State Office of Alcoholism and Substance Abuse Services.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.6 Procedures for obtaining access to office records

(a) Request for access to office records.

(1) Any request for access to a record or records shall be made to the records access officer and must be in writing.

(2) Each such request shall describe the record or records sought as reasonably as possible with information regarding dates, file designations and any other available data which will be held in the search for the record or records.

(b) Responding to requests.

(1) The records access officer shall respond to every request for access to office records within five business days after receipt of such request.

(2) Every such response shall be in writing and shall indicate:

(i) approval of the request;

(ii) denial of the request; or

(iii) if the office determines to grant a request in whole or in part, and if the circumstances prevent disclosure to the person requesting the record or records within 20 business days from the date of the office response to the request, the office shall state in writing, both the reasons for the inability to grant the request within 20 business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Failure of the office to conform to the provisions of this subdivision shall constitute a denial of access to records subject to appeal pursuant to section 803.9 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.7 Approvals of requests

(a) Every request for access to office records shall be granted except where there are grounds for denial. In addition to those listed in section 87 of the Public Officers Law, also known as the Freedom of Information Law, other grounds for denial include, but are not limited to, provisions of other Federal and State statutes and regulations.

(b) The written response approving any request for access to office records shall indicate the time and place where the record or records may be inspected.

(c) The original or file copy of any releasable office record shall not be released by the office but may be inspected by any person in the presence of the records access officer or other designated employee of the office.

(d) If requested, a photocopy of any releasable office record shall be furnished by the records access officer to any person upon payment of the appropriate fee in accordance with the provisions of section 803.5 of this Part.

(e) Upon request, the records access officer shall certify that any office record being inspected, or a copy thereof, is a true copy.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.8 Denials of requests

(a) Any denial of a request for access to office records shall be by written notice and such notice shall:

(1) state the reasons for the denial;

(2) advise the person making the request that such denial may be appealed to the records access appeals officer;

(3) advise the person of the name, business address and telephone number of the records access appeals officer; and

(4) advise that any such appeal must be made within 30 days after the date of the denial notification.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.9 Appeals of denials of access to office records

(a) Records access appeals officer. The Records access appeals officer for the office shall be the office general counsel.

(b) Appealing a denial of access.

(1) Any person who has been denied access to office records may make a written appeal within 30 days of the date of such denial to the records access appeals officer.

(2) Any such written appeal shall be addressed as follows: Division of Legal Affairs, New York State Office of Alcoholism and Substance Abuse Services, 1450 Western Avenue, Albany, NY 12203-3526.

(3) Every such written appeal shall contain:

(i) the date of the original request for access to office records;

(ii) a description of the record or records to which access was denied;

(iii) the reason or reasons stated in the denial notice; and

(iv) the name and return address of the person appealing the denial.

(1) Within 10 business days after receipt of any written appeal, the records access appeals officer shall review the matter, shall affirm, modify or reverse the denial and shall notify the appellant of the determination.

(2) If the records access appeals officer determines that there are sufficient grounds to review the denial, the records access officer shall be instructed to allow prompt inspection or copying of the record or records requested. The notification to the appellant shall contain the time and place where the inspection or copying may be made.

(3) If the records access appeals officer upholds the denial, the notification to the appellant shall contain the reasons for the determination and shall inform the appellant of the right to a judicial review of the matter pursuant to article 78 of the New York Civil Practice Law and Rules.

(d) Notification of Committee on Open Government.

(1) Whenever the records access appeals officer receives an appeal of a denial of access to office records, a copy of such appeal shall be sent to the Committee on Open Government, Department of State, 41 State Street, Albany, NY 12231.

(2) The Committee on Open Government shall be notified in writing of the final decision of the records access appeals officer. The notification shall contain the reasons for the final decision.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.10 Public notice

(a) Notices shall be posted in conspicuous locations in the office central office, each office regional office and in each State-operated addiction treatment center which will indicate the following:

(1) Locations where office records shall be made available for inspection and copying.

(2) The name, title, business address and business telephone of the office records access officer.

(3) The right of appeal by any person denied access to office records and the name, title and business address of the records access appeals officer.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.11 Trade secrets

(a) Trade secrets received in conjunction with applications for office approval, funding or certification.

(1) Information or documents constituting trade secrets required to be submitted as part of applications to the office for approval, funding and/or certification shall be identified in writing by the applicant as a trade secret prior to or at the time of submission of the application to the office.

(2) After receipt of a request that information or documents be exempt from disclosure as trade secrets, the records access officer shall review the sufficiency of such request. If the records access officer determines that the information or documents do not constitute a trade secret, a written determination shall be issued denying the request and stating the reasons for the denial. Appeals from denials are governed by section 89, subparagraph (5)(c)(1) of the Public Officers Law.

(3) Information or documents identified by an applicant as a trade secret and so designated by the office shall be distributed outside the office only to the local government unit and health systems agency as required by sections 32.29 and 32.31 of the Mental Hygiene Law.

(4) Except as provided in subdivision (b) of this section, information and documents identified as trade secrets shall be given only to employees or others acting as agents of the office who need such information and/or documents in connection with the review of such application.

(5) The office and/or its agents shall not use said information or documents designated as trade secrets for any purpose other than the appropriate review of the application.

(6) Information and documents identified as trade secrets shall be returned to the applicant if the application is disapproved. If the application is approved, the information and documents containing trade secrets shall be sealed and stored separately from other application materials and reasonably secured from access by unauthorized persons.

(7) Any request for access to information or documents containing trade secrets shall be dealt with in accordance with the Freedom of Information Law (subdivisions [3], [4] and [5] of section 89 of the Public Officers Law). All such requests for access shall be directed to the office's records access officer.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 803.12 Severability

If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the remaining provisions of this Part or the application thereof to other persons or circumstances.

Part 804 Access To Information

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.1 Purpose

The purpose of this Part is to implement the provisions of article 6-A of the Public Officers Law by establishing procedures under which a data subject may have access to records maintained by the office pertaining to such subject.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.2 Definitions

As used in this Part the following terms shall mean:

(a) Office means the Office of Alcoholism and Substance Abuse Services of the State of New York, established pursuant to article 19 of the Mental Hygiene Law.

(b) Commissioner means the Commissioner of the Office of Alcoholism and Substance Abuse Services.

(d) Data subject means any natural person about whom personal information has been collected by the office.

(e) Personal information means any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify the data subject.

(f) Disclose means to reveal, release, transfer, disseminate or otherwise communicate personal information or records orally, in writing or by electronic or any means other than the data subject.

(g) Governmental unit means any governmental entity performing a governmental or proprietary function for the Federal government or for any state or any municipality thereof.

(h) Law means any state or Federal statute, rule or regulation.

(i) Record means any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject. The term record shall not include personal information which is not used to make any determination about the data subject if it is:

(1) a telephone book or directory which is used exclusively for telephone and directory information;

(2) any card catalog, book or other resource material in any library;

(3) any compilation of names and addresses only which is used exclusively for the purpose of mailing office information;

(4) personal information required by law to be maintained, and required by law to be used, only for statistical research or reporting purposes;

(5) information requested by the office which is necessary to answer unsolicited requests by the data subject for information; or

(6) correspondence files.

(j) Routine use means, with respect to the disclosure of a record or personal information, any use of such record or personal information relevant to the purposes for which it was collected, and which use is necessary to the statutory duties of the office or is necessary to operate a program specifically authorized by law.

(k) System of records means any group of records under the actual or constructive control of the office pertaining to one or more data subjects from which personal information is retrievable by use of the name or other identifier of a data subject.

(l) Business day means any day except Saturday, Sunday or a public holiday.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.3 Personal privacy compliance officer

(a) The office's Director of the Bureau of Communications and Community Relations, is hereby designated personal privacy compliance officer and is responsible for ensuring that the office complies with the provisions of the Personal Privacy Protection Law and these regulations and for coordinating responses to requests for records or amendment of records.

(b) The address of the personal privacy compliance officer is: New York State Office of Alcoholism and Substance Abuse Services, 1450 Western Avenue, Albany, NY 12203-3526.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.4 Procedures

(a) A person who wishes to determine whether he/she is a data subject in records maintained by the office may contact the personal privacy compliance officer, who will assist in identifying such records and, if appropriate, will describe the contents of the office's system of records orally or in writing.

(b) Requests for access to records must be made to the personal privacy compliance officer in writing and must reasonably describe the records sought. Whenever possible the data subject should supply identifying information that assists the office in locating the records sought. Requests will be accepted by mail, or in person at the address of the personal privacy compliance officer listed in section 804.3(b) of this Part on any business day between the hours of 9:00 a.m. and 4:30 p.m.

(c) Within five business days of the receipt of a request, the office shall either provide access to the record or deny access in writing, explaining the reasons therefor, or acknowledge the receipt of the request in writing, stating the approximate date when the request will be granted or denied, which shall be within 30 days from the date of the acknowledgment.

(d) When the record is located, the office shall:

(1) make the record available for inspection, in a printed form without codes or symbols, unless an accompanying document explaining such codes or symbols is also provided;

(2) if requested, make a copy available, upon payment of or offer to pay the fees authorized by section 804.10 of this Part, or permit the data subject to copy the record by hand; or

(3) deny access to the record in whole or in part and explain in writing the reasons therefor.

(e) Records or copies shall be made available at the office of the personal privacy compliance officer at the address listed in section 804.3(b) of this Part or where they are kept and shall not be removed from that location without the express written consent of the director.

(f) Proof of identity, by presentation of a driver's license or other documentation or verification of signature or identifying facts, or other means, at the option of the office may be required of a person making a request.

(g) Upon request, the personal privacy compliance officer shall certify that:

(1) a copy of a record is a true copy;

(2) the office does not have possession of the record sought;

(3) the office cannot locate the record sought after having made a diligent search;

(4) the information sought cannot be retrieved by use of the description provided, or by use of the name or other identifier of the data subject without extraordinary search methods being employed; or

(5) the information is not disclosable under section 804.5 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.5 Records which are exempt from access by data subjects

(a) Personal information specifically prohibited by statute from disclosure.

(b) Records concerning mental disability or medical records where access is not otherwise required by law.

(c) Personal information pertaining to the incarceration of an inmate at a state correctional facility which is evaluative in nature or could endanger the life or safety of any person, unless access is otherwise permitted by law or by court order.

(d) Attorney's work product or material prepared for litigation, except pursuant to statute, subpoena issued in the course of a criminal action or proceeding, court-ordered or grand jury subpoena, search warrant or other court-ordered disclosure.

(e) Public safety agency records.

(f) Records containing information compiled for law enforcement purposes which if disclosed would:

(1) interfere with law enforcement investigations or judicial proceedings;

(2) deprive a person of a right to a fair trial or impartial adjudication;

(3) identify a confidential source or disclose confidential information relating to a criminal investigation; or

(4) reveal criminal investigative techniques or procedures, except routine techniques and procedures.

(g) When providing the data subject with access to information described in paragraph (b) of subdivision 7 of section 94 of the Public Officers Law, the office may withhold the identity of a source who furnished said information under an express promise that his or her identity would be held in confidence.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.6 Correction or amendment of records

Within 30 business days of a written request from a data subject for correction or amendment of a record or personal information that is reasonably described and that pertains to the data subject, which he or she believes is not accurate, relevant, timely or complete, the office shall:

(a) make the correction or amendment in whole or in part and inform the data subject that, on his or her request, such correction or amendment will be provided to any person or governmental unit to which the record or personal information has been or is disclosed pursuant to paragraph (c) of subdivision 3 of section 94 of the Public Officers Law; or

(b) inform the data subject in writing of its refusal to correct or amend the record, including the reasons therefor.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.7 Office's failure to respond

A failure to grant or deny access to records within five business days of the receipt of a request or within 30 days of an acknowledgment of the receipt of such request, or failure to respond to a request for correction or amendment of a record within 30 business days of receipt of such a request, shall be construed as a denial that may be appealed.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.8 Appeals

(a) Any person denied access to a record or denied a request to correct or amend a record or personal information pursuant to this Part may, within 30 business days of such denial, appeal in writing to the Division of Legal Affairs at the following address: 1450 Western Avenue, Albany, NY 12203-3526.

(b) In order to be acted upon, the appeal must identify:

(1) the record that it concerns;

(2) the date and location of a request for a record or correction or amendment of a record or personal information; and

(3) the appellant, and list his or her address.

(c) Within seven business days of an appeal of a denial of access, or within 30 business days of an appeal concerning a denial of a request for correction or amendment, the counsel shall:

(1) direct the personal privacy compliance officer to provide access to or correct or amend the record or personal information; or

(d) If, on appeal, a record or personal information is corrected or amended, the data subject shall be informed that, on his or her request, the correction or amendment will be provided to any person or governmental unit to which the record or personal information has been or is disclosed pursuant to paragraph (c) of subdivision 3 of section 94 of the Public Officers Law.

(e) The office shall forward to the Committee on Open Government a copy of any such appeal, upon receipt, and its determination, when made, and the reasons therefor.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.9 Statement of disagreement by data subject

(a) If correction or amendment of a record or personal information is denied in whole or in part upon appeal, the office shall notify the data subject of the right to:

(1) file a statement of reasonable length setting forth the data subject's reasons for disagreement with the determination; and

(2) request that the statement of disagreement be provided to any person or governmental unit to which the record has been or is disclosed pursuant to paragraph (c) of subdivision 3 of section 94 of the Public Officers Law.

(b) Upon receipt of a statement of disagreement by a data subject, the office shall:

(1) clearly note any portions of the record that are disputed; and

(2) attach the data subject's statement as part of the record.

(c) When providing a data subject's statement of disagreement to other persons or governmental units pursuant to paragraph (c) of subdivision 3 of section 94 of the Public Officers Law, the office may, if it deems appropriate, also include a concise statement of its reasons for not making the requested amendment.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.10 Fees

Any fees authorized herein shall be payable in advance.

(a) The fee for photocopies not exceeding 9 x 14 inches shall be 25 cents per page.

(b) The fee for photocopies of records in excess of 9 x 14 inches per page shall be the actual cost of such copying.

(c) The fees for copies of records not covered by subdivisions (a) and (b) of this section, shall not exceed the actual reproduction cost which is the average unit cost for copying a record, excluding fixed costs of the agency such as operator salaries.

(d) In the event that the record is of such a nature that it cannot be photocopied, a transcript of such record shall be made upon request of the applicant. Such transcripts may either be typed or handwritten at the discretion of the office. In such cases, the requester may be charged for the clerical time involved in making the transcript.

(e) No fee will be charged for:

(1) inspection of records;

(2) searching for records; or

(3) a certification pursuant to this Part.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 804.11 Severability

Part 805 Criminal History Information Reviews

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.1 Background and intent

(a) The Protection of People with Special Needs Act (chapter 501 of the Laws of 2012) requires that criminal history information reviews be conducted on:

(1) each prospective treatment provider, operator, employee, contractor, or volunteer of treatment facilities certified by the NYS Office of Alcoholism and Substance Abuse Services (OASAS or office) who will have the potential for, or may be permitted, regular and substantial unsupervised or unrestricted physical contact with the clients in such treatment facilities; and

(2) any individual seeking to be credentialed by the office.

(b) This legislation is intended to enable providers of services to persons seeking treatment for substance use disorders to secure appropriate and properly trained individuals to staff their facilities and programs, by verifying criminal history information received for individuals seeking employment or volunteering their services and those credentialed by the office.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.2 Applicability

(a) This Part shall apply to every provider of substance use disorder services certified or licensed by the office, or any entity which contracts with, or is otherwise approved by the office to provide services, except:

(1) a facility or program that is directly operated by the Office of Alcoholism and Substance Abuse Services;

(2) a hospital, as defined in section 2801 of the New York State Public Health Law, that is licensed by the Department of Health; or

(b) This Part shall also apply to every applicant to be an operator of a provider of substance use disorder services that meets the criteria set forth in subdivision (a) of this section.

(c) This Part shall also apply to every applicant for a credential, renewal or reinstatement of such credential issued by the office pursuant to Part 853 of this Title.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.3 Legal base

(a) Section 19.07 (c) of the Mental Hygiene Law charges the office with the responsibility for ensuring that persons in need of treatment for substance use disorder receive high quality care and treatment, and that the personal and civil rights of persons receiving care, treatment and rehabilitation are adequately protected.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 19.20 of the MHL authorizes the office to receive and check criminal history information related to employees and volunteers of providers of services who contract with, or are approved or otherwise authorized by the office to provide services.

(d) Section 19.20 -a of the MHL authorizes the office to receive and check criminal history information related to persons seeking to be credentialed by the office or applicants for an operating certificate issued by the office.

(e) Section 19.40 of the Mental Hygiene Law authorizes the commissioner to issue operating certificates for the provision of chemical dependence services.

(f) Section 32.02 of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary to ensure quality services to those suffering from compulsive gambling.

(g) Subdivisions (15) and (16) of section 296 of the Executive Law identify unlawful discriminatory practices with regard to the employment and the issuance of licenses.

(h) Civil Service Law section 50 authorizes the Department of Civil Service to request criminal history checks for applicants for State employment.

(i) Article 23-A of the Correction Law provides the factors to be considered concerning a person's previous criminal convictions in making a determination regarding employment and the issuance of a license.

(j) The Protection of People with Special Needs Act (chapter 501 of the Laws of 2012) establishes the Justice Center for the protection of people with special needs, the Vulnerable Persons Central Register, and the Register of Substantiated Category One Cases of Abuse and Neglect.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.6 Submission of fingerprints by applicants for certification or credentialing

(a) Certification applicants.

Any applicant for an operating certificate as a provider of services pursuant to Part 810 of this Title, whose application is initiated on or after June 30, 2013, shall require a criminal history information check of all natural persons with an ownership interest in such providers:

(1) any change in the ownership interest of any provider on or after June 30, 2013, for which a new natural person becomes or joins as an operator shall require a criminal history information check of such new natural person or persons;

(2) as part of an applicant's initial application for an operating certificate, part of a previously certified provider's recertification review, or change in ownership status or configuration, the applicant or provider shall designate authorized person(s) who shall be responsible for furnishing the division with the fingerprints of the prospective operator of the provider, as well as those of any prospective employee, contractor, volunteer or any operator who joined the organization subsequent to June 30, 2013 or who previously did not have a criminal history information check performed;

(3) the process for requesting fingerprints of applicants and submitting to the division shall be consistent with the provisions of subdivision (d) of section 805.5 of this Part; and

(4) a subject individual may withdraw from the application process, without prejudice, at any time regardless of whether he or she, or the office, has reviewed his or her criminal history information, provided that upon such withdrawal from the application process, any fingerprints and criminal history information received by the office and/or the provider shall be destroyed.

(b) Credentialing applicants.

Any applicant for a credential issued by the office pursuant to Part 853 of this Title, or renewal of such credential, whose application is initiated on or after June 30, 2013 shall require a criminal history information check, provided however, that:

(1) persons credentialed prior to June 30, 2013 shall require such criminal history information check only upon initial employment by a service provider or a change in employment by a service provider;

(2) the process for requesting fingerprints of applicants and submitting to the division shall be consistent with the provisions of section 805.5(d) of this Part wherein the office shall perform the function of the provider of services; and

(3) an applicant may withdraw from the application process, without prejudice, at any time regardless of whether he or she, or the office, has reviewed his or her criminal history information, provided that upon such withdrawal from the application process, any fingerprints and/or criminal history information received by the office shall be destroyed.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.7 Criminal history information review

(a) Upon receipt of criminal history information, if such information indicates the subject individual has been convicted of a criminal offense in New York, in any state other than New York, or in a Federal jurisdiction, the division shall promptly provide such information to the office only by a method of secure and confidential delivery, and such information shall at all times be maintained by the authorized person(s) for the office in a secure place.

(b) Upon receipt of any criminal history information from the division, the office shall check the information to consider and determine whether to recommend that the provider approve or disapprove the prospective employee, contractor, volunteer or applicant in accordance with the provisions of article 23-A of the Correction Law and subdivisions (15) and (16) of section 296 of the Executive Law.

(c) If the criminal background check indicates that the subject individual has no known criminal history, the office and the provider shall continue consideration of the subject individual's application.

(d) For those individuals whose criminal history includes convictions for crimes only committed within New York State, the office's review will result in a recommendation that the nature of the person's criminal history makes him or her suitable or unsuitable for a job in which there will be regular and substantial unsupervised physical contact with the provider's clients.

(e) For those individuals with an out-of-state criminal history, the office will make a binding hiring decision for the provider.

(f) If a provider has received from the office a summary of the New York State criminal history information and a determination by the office that such subject individual is appropriate for certification, credentialing, employment, contract, or volunteer status, the provider shall further consider such application in accordance with the provisions of article 23-A of the Correction Law and section 296 (15) and (16) of the Executive Law.

(g) Where the criminal history record of an applicant, potential employee, contractor or volunteer reveals a pending charge for any felony or, any comparable offense in any other jurisdiction, the office shall hold the application in abeyance until the charge is finally resolved.

(h) Where the criminal history record of an applicant, potential employee, contractor or volunteer reveals a pending charge for any misdemeanor, or any comparable offense in any other jurisdiction, the office may hold the application in abeyance until the charge is finally resolved.

(i) Prior to making a determination to deny a subject individual, the office shall afford the applicant, prospective employee, contractor or volunteer an opportunity to explain in writing, within 15 calendar days from the date the notification was mailed, why the application should not be denied. The applicant, prospective employee, contractor or volunteer may request an extension of up to 15 days. The opportunity for an explanation shall be sent non-electronically, in a manner of mailing that is capable of verifying the date of mailing and shall include a copy of the criminal history information, including 11 all State and Federal data, and a copy of article 23-A of the Correction Law and information about the subject individual's right to and procedure to seek correction of any incorrect information contained in the history. For prospective operators and new operators of existing providers of service, this opportunity may, at the discretion of the office, be afforded in the application or certification renewal materials for such operators required to be submitted to the office.

(j) Where the office recommends or directs a provider of services to deny an application of a prospective employee contractor, or volunteer, or to terminate a temporarily approved prospective employee, contractor or volunteer, based on the criminal history record, the provider of services must notify such person, in writing, that such criminal history record is the basis of the denial.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.8 Documentation and confidentiality

(a) Only the authorized person or his or her designee and the relevant subject party shall have access to the summary of the New York State criminal history information received by a provider of services or the office. However, criminal history information may be disclosed by the authorized person to other parties who are directly participating in any decision with regard to such subject party, to which this information is relevant.

(b) The authorized person and any other party to whom such criminal history is disclosed shall keep this information strictly confidential.

(c) Any party who willfully permits the release of any confidential criminal history information obtained from a criminal history information check pursuant to this section to parties not authorized to receive same shall be guilty of a misdemeanor.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.9 Notification of subsequent criminal charges or convictions

(a) The division shall promptly forward notification that there is a pending criminal action or proceeding, with regard to an employee, volunteer, contractor, operator or credentialed person to the office only by a method of secure and confidential delivery, addressed to the office. Such information shall be marked "confidential" and shall at all times be maintained by the office in a secure place.

(b) Upon receiving notification from the division that there is a pending criminal action or proceeding with regard to an employee, volunteer, or contractor, the office shall promptly notify the authorized person of a provider of services of the pending criminal action or proceeding.

(c) Upon receiving notification from the office of the pending criminal action or proceeding, or a conviction, a provider of services shall take any and all appropriate action to ensure that the health, safety, and welfare of its clients are protected and:

(1) such action or actions shall be documented; and

(2) in cases involving pending criminal actions or proceedings against employees or volunteers, it shall be the responsibility of the provider of services to inquire as to the outcome of such proceedings if the employee or volunteer remains in service with the provider.

(d) Upon receiving notification from the division that there is a pending criminal action or proceeding, with regard to an owner or operator of a certified provider of services, or person holding a credential issued by the office, the office shall take any and all actions pursuant to regulation to protect the health and safety of persons receiving services.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 805.11 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.

History

Amended New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

Part 807 Responsibilities Regarding HIV/AIDS

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.1 Applicability

This Part applies to any program certified by the Office to provide addiction treatment services.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.2 Legal Basis

(a) Section 19.07 of the Mental Hygiene Law (MHL) authorizes the commissioner to adopt standards including necessary rules and regulations pertaining to chemical dependence treatment services.

(b) Section 19.09(b) of the MHL authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his/her jurisdiction.

(c) Section 32.07(a) of the MHL authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the MHL.

(d) Article 27-F of the Public Health Law defines the rules governing HIV testing, treatment and confidentiality/disclosure in New York.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.3 Intent

The intent is to clarify obligations of providers certified or otherwise authorized pursuant to this Chapter regarding HIV-related services and confidentiality. This Part is aligned with New York's plan to end the AIDS epidemic by ensuring that everyone knows their HIV status and has access to medications used to prevent or treat HIV. Effective treatment with antiretroviral medication results in an undetectable viral load, making it nearly impossible to transmit HIV to another person.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.5 Infection Control Plan

(a) Each program must establish an infection control plan appropriate for the services provided including, at a minimum, the following:

(1) Prevention of circumstances which could result in staff or patient(s) becoming exposed to a significant risk body substance including but not limited to:

(i) use of scientifically accepted preventive barriers during job-related activities which involve, or may involve, exposure to significant risk body substances. Such preventive actions must be taken with each patient as an essential element for the prevention of bi-directional spread of HIV; and

(ii) use of scientifically accepted preventive practices and equipment during job-related activities involving the use of contaminated instruments or equipment which may cause puncture injuries.

(2) A system for monitoring preventive activities to ensure compliance and safety.

(b) Procedures must be developed in response to circumstances in which a staff or patient is exposed to a significant risk body substance including a system for:

(1) reporting any such exposure to a designated individual in the program;

(2) evaluating the circumstances of a reported exposure and procedures for appropriate medical and epidemiological follow-up services for the exposed individual, including access to medications for post-exposure prophylaxis.

(c) Any disclosure of HIV-related information related to exposures must comply with this Part and applicable state and federal confidentiality laws.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.6 HIV-related testing and prevention

(a) Testing. Patients admitted to any Office certified, funded and/or otherwise authorized program shall be offered an HIV test. Such test may be offered on-site or by referral. Staff must note in the patient's case record that the test was offered and whether the patient declined to be tested.

(b) Prevention.

(1) Prevention counseling shall include, but not be limited to, discussions regarding use of condoms, not sharing drug use paraphernalia, and pre- and post-exposure prophylaxis.

(2) Patients entering certified, funded and/or otherwise authorized programs on a prescribed HIV prevention medication regimen must be maintained on such regimen unless consultation with the prescribing practitioner and the patient has occurred and the patient has consented to an alternative regimen.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.7 Non-discrimination

(a) Discrimination prohibited. No program shall deny admission to, terminate care and/or treatment, change the status of, limit or otherwise reduce the range, quality or variety of addiction services to any person solely on the basis of that person's actual, presumed, or alleged HIV-related condition or status; provided that this requirement shall not preclude appropriate differential treatment necessitated by the individual's medical condition.

(b) Conditions prohibited. No program shall condition admission, continuation of services or provision of any needed service on an agreement by the individual to obtain an HIV-related test or treatment or to disclose the results of any previous or future HIV test.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.8 Non-discrimination

(a) Discrimination prohibited.

No program shall deny admission to, terminate care and/or treatment, change the status of, limit or otherwise reduce the range, quality or variety of addiction services to any person solely on the basis of that person's actual, presumed, or alleged HIV-related condition or status; provided that this requirement shall not preclude appropriate differential treatment necessitated by the individual's medical condition.

(b) Conditions prohibited.

No program shall condition admission, continuation of services or provision of any needed service on an agreement by the individual to obtain an HIV-related test or services or to disclose the results of any previous or future HIV test.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.9 HIV-related staff training and education

(a) Training and orientation.

(1) Training and orientation of new staff must include information and instruction regarding:

(i) the legal prohibitions against unauthorized disclosure;

(ii) the use of protective equipment and preventive practices and recognition of circumstances which represent significant risk of contracting or transmitting HIV.

(iii) program policies and procedures established pursuant to this Part.

(2) All staff must be provided retraining on the material specified in this Part at least annually.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.10 HIV-related staff training and education

(a) Training and orientation.

(1) Training and orientation of new staff must include information and instruction regarding:

(i) the legal prohibitions against unauthorized disclosure of confidential HIV-related information;

(ii) the use of protective equipment and preventive practices and recognition of circumstances which represent significant risk of contracting or transmitting HIV;

(iii) program policies and procedures established pursuant to this Part.

(2) All staff must be provided retraining on the material specified in this Part at least annually.

History

Adopted New York State Register December 19, 2018/Volume XL, Issue 51, eff. 12/19/2018

N.Y. Comp. Codes R. & Regs. Tit. 14 § 807.11 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

Part 810 Establishment, Incorporation and Certification Of Providers of Substance Use Disorder Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.1 Background and intent

An existing or prospective provider of addiction services is required to obtain the prior approval of the commissioner (commissioner) of the New York State Office of Addiction Services and Supports (Office or OASAS) before establishing, incorporating and/or constructing a facility or offering a service. This Part prescribes the criteria and procedures applicable for obtaining such prior approval, as well as the procedural requirements for obtaining the required authorization to provide one or more services by either a prospective or existing provider.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.2 Legal base

(a) Section 19.07 (c) of the Mental Hygiene Law (MHL) charges the Office with the responsibility for ensuring that persons in need of addiction services, care and treatment receive services of high quality and effectiveness and that the personal and civil rights of persons seeking and receiving such services are adequately protected.

(b) Section 19.07(e) of the MHL authorizes the Commissioner to adopt standards including necessary rules and regulations pertaining to addiction treatment services.

(c) Section 19.09(b) of the MHL authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under their jurisdiction.

(d) Section 19.20 of the MHL requires review of criminal history information review concerning certain prospective employees and volunteers of providers of services certified, operated or otherwise authorized by the office.

(e) Section 19.20 -a of the MHL authorizes the Office to receive criminal history information from the Division of Criminal Justice Services related to persons seeking to be credentialed or applicants for an operating certificate issued by the office that will have regular and substantial unsupervised or unrestricted contact with patients/clients.

(f) Section 19.21(b) of the MHL requires the Commissioner to establish and enforce regulations concerning the licensing, certification, inspection and treatment standards of addiction treatment services.

(g) Section 19.21(d) of the MHL requires the office to establish reasonable performance standards for providers of services certified by the Office.

(h) Section 19.40 of the MHL authorizes the Commissioner to issue operating certificates for the provision of addiction treatment services, including the authority to waiver regulatory requirements.

(i) Section 32.01 of the Mental Hygiene Law authorizes 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.

(j) Section 32.05 of the MHL provides that no substance use disorder services may be established without an Operating Certificate issued by the commissioner.

(k) Section 32.07(a) of the MHL authorizes the Commissioner to adopt regulations to effectuate the provisions and purposes of article 32 of the MHL.

(l) Section 32.09 of the MHL contains criteria that the Commissioner must consider when issuing an operating certificate.

(m) Section 32.21 of the MHL provides the Commissioner with the authority to suspend, revoke or limit operating certificates and imposition of fines.

(n) Section 32.29 of the MHL authorizes the Commissioner to approve the construction of a facility for which an operating certificate will be issued.

(o) Section 32.31 of the MHL provides the process for the establishment or incorporation of facilities for addiction services.

(p) Section 406 of the Business Corporation Law requires any corporation which intends to establish or operate a program of services for addiction services to obtain the approval of the Commissioner as to the proposed filing of its certificate of incorporation.

(q) Section 404 (u) of the Not-For-Profit Corporation Law gives the Commissioner the responsibility of approving the certificate of incorporation of any corporation which intends to establish or operate an addiction program Certified by the Office.

(r) The Protection of People with Special Needs Act (Chapter 501 of the Laws of 2012) establishes the Justice Center for the Protection of People with Special Needs (Justice Center) and requires criminal information history reviews of all applicants for authorization to operate a program of services for addiction; and of all employees, contractors, or volunteers of such certified program who will have the potential for, or may be permitted, regular and substantial unsupervised or unrestricted physical contact with the patients or clients of such programs.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.3 Applicability

This Part applies to any existing or prospective provider of services which is required to obtain an operating certificate from the Commissioner in accordance with Articles 19 and 32 of the Mental Hygiene Law and which is proposing the establishment, incorporation, and/or construction of a facility to provide addiction services.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.4 Definitions

For purposes of this Part:

(a) Acquisition means obtaining real property by purchase, lease, donation, condemnation, inheritance or bequest.

(b) Applicant means a provider or prospective provider of services who submits an application for the commissioner's approval in accordance with this Part.

(c) Criminal history information, criminal background, or criminal history record means a record of pending criminal charges, criminal convictions which are not vacated or reversed, and certificates filed pursuant to subdivision (2) of section 705 of the Correction Law, and which the New York State Division of Criminal Justice Services is authorized to maintain pursuant to subdivision (6) of section 837 of the Executive Law. For purposes of this Part, criminal history information, criminal background, or criminal history record shall also include information from the Federal Bureau of Investigation as a result of a national criminal history record check.

(d) Construction means the erection, building, substantial acquisition, alteration, reconstruction, improvement, extension or modification of a facility, including, equipment, the inspection and supervision thereof, and the studies, surveys, designs, plans, working drawings, specifications, procedures and other actions necessary thereto.

(e) Establishment means planning, developing or organizing by a prospective or existing provider related to services or a facility to be used for providing addiction services.

(f) Facility means any place where addiction services certified by the office are provided.

(g) Governing authority means the overall policy making authority, whether an individual or group, that exercises general direction over the affairs of a provider of services and establishes policies concerning its operation.

(h) Incorporation means the process of forming a corporation, including the filing of a certificate of incorporation under any statute to form a corporation, which shall also include certificates of amendment, merger or consolidation of other certificates filed by the corporation under any statute.

(i) Local governmental unit means a unit of local government or a local agency given authority in accordance with Articles 25 and/or 41 of the Mental Hygiene Law and by the local government to be responsible for addiction services.

(j) Operating certificate means a written notice conveying to the public that the Commissioner has issued approval for the governing authority to operate authorized services at the location or locations specified thereon.

(k) Project means all information, documents, planning and development activities and all activities relating to establishment, incorporation or construction prior to any operation or change in operation of a facility or service.

(l) Provider of services means an individual, association, partnership, corporation, public or private agency, other than an agency or department of the State, which provides addiction services.

(m) Specialized service means services defined in Part 824 of this Title requiring an appropriate review and approval of a certification application pursuant to this Part.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.5 Applications requiring full review

(a) The following applications are subject to full review in accordance with the provisions of section 810.8 of this Part:

(1) establishment of any service by a prospective provider that has not been previously certified by the office to provide addiction services; or

(2) any transfer, assignment or other disposition of 10 percent or more of the stock or voting rights of a business corporation which is the operator of an authorized service, or any transfer, assignment or other disposition of the stock or voting rights thereunder of such business corporation which results in the ownership or control of more than 10 percent of the stock or voting rights thereunder of such business corporation; or

(3) any capital project proposed by a certified voluntary provider which requires a new or amended operating certificate.

(b) An applicant shall not separate or divide a project requiring full review into separate applications and apply for approval of the parts separately through the administrative review process. The Office may, as it deems appropriate, combine applications for separate projects in order to provide for full disclosure of the nature or scope of a project.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.6 Applications requiring administrative review

(a) The following applications are subject to administrative review in accordance with the provisions of section 810.9 of this Part:

(1) establishment or operation of a new service by an existing provider of certified services, including an additional location application submitted in accordance with section 810.13(c) of this Part; or

(2) an increase in the capacity of a service where capacity is identified on the operating certificate; or

(3) the relocation of any certified service; or

(4) any capital project proposed by a certified voluntary provider which proposes a funding source for such project, other than the mental health services facilities program (Dormitory Authority of the State of New York), directly or indirectly through a closely related entity.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.7 Standards for approval of an application requiring full or administrative review

(a) To approve a project requiring either full or administrative review, the Office must find the application meets all of the following:

(1) that there is a public need for the services at the time and place and under the circumstances proposed;

(2) that there are no facilities or services available which serve as alternatives or substitutes, for the services and facilities proposed;

(3) that there are no substantiated negative findings as to the character, competence and standing in the community of the applicant;

(4) that the available financial resources and the sources of future revenues are adequate to meet all necessary and proper capital and operating expenses;

(5) that services will be provided in compliance with applicable laws and regulations, including, but not limited to, the regulatory requirements of this Title;

(6) that ten percent of the owners or principals of the applicant have demonstrated, and can substantiate, prior substantial experience directly providing or managing substance use disorder treatment services, as determined by criteria established by the Office and will maintain such experience while Certified;

(7) that the owners or principals of the applicant have received a criminal history information review pursuant to the provisions of Part 805 of this Title, and the applicant has been subsequently approved by the office.

(b) In determining whether the requirements of subdivision (a) of this section are met, the office shall consider the extent to which:

(1) the services and facilities conform to local and statewide plans, including but not limited to plans for Medicaid managed care;

(2) existing similar services are able to meet or exceed regulatory compliance; and

(3) there exist any other matters determined to be in the public interest.

(1) A management level staff person is identified to be responsible for coordinating all requirements relating to diversity, equity, and inclusion, consistent with all rules and regulations issued by the Office;

(2) the services and facilities will meet the particular needs of the community to be served, based on a needs assessment of the catchment area to be serviced, including the identification of unserved and underserved marginalized communities, uninsured and underinsured persons, and is reflective of the cultural and linguistic needs of the community;

(3) the provider of services is affirmatively addressing opportunities to overcome systemic barriers to accessing care for the communities and persons identified as part of the needs assessment.

(d) If an application involves construction, the office may require the applicant to demonstrate, through the submission of detailed architectural schematic drawings, that the following requirements are met:

(1) that the proposed construction ensures patient confidentiality including gender neutral restroom facilities;

(2) that there is no more efficient architectural solution to the proposed construction, except that providers may include creation of gender neutral restroom facilities;

(3) that the proposed construction will not adversely affect the costs of providing services;

(4) that the proposed construction conforms to applicable Federal, State and local laws and regulations; and

(5) that the proposed construction ensures patient confidentiality.

(e) Criteria and procedures for approval of leases.

(1) If an applicant proposes to lease a facility in which all or part of the proposed services are to be provided, the lease agreement shall include, but is not limited to, the following language: "The landlord acknowledges that the rights of reentry into the premises as set forth in this lease do not confer on the landlord the authority to operate an addiction services program. The landlord agrees to give the New York State Office of Addiction Services and Supports at least thirty (30) day's notice by certified mail of the intent to re-enter the premises or to initiate dispossess proceedings and at least sixty (60) days notice of expiration of the lease."

(2) Lease terms must be for a term sufficient to ensure program continuity with an option to renew for an additional term of years. Longer terms may be required if financial support is provided for a capital project by the office. Month-to-month lease terms shall not be deemed sufficient.

(f) Amendment of an application.

Any amendment to an application, other than technical or minor amendment, that changes the application during the process of review to such an extent that it requires, in the opinion of the commissioner, a reinitiation of a full or administrative review in accordance with this Part must include a written explanation as to the reason for such amendments.

(g) Failure to notify of changes.

Failure to provide the office with information about changes in an application or to obtain prior approval when required by this section may constitute grounds for the denial of authorization to provide services and revocation, limitation or amendment of any operating certificate previously granted for that application.

(h) Withdrawal of an application by the applicant.

An application made to the office in accordance with this Part may be voluntarily withdrawn by written notice from the applicant at any time prior to the decision of the Commissioner.

(i) Criteria and procedures for approval of certificates of incorporation.

(1) Not-for-profit corporations. An entity incorporated or proposed to be incorporated under the Not-for-Profit Corporation Law shall provide the commissioner with a proposed certificate of incorporation or certificate of amendment that conforms with the requirements of the Not-for-Profit Corporation Law and the Mental Hygiene Law. The board of directors of a not-for-profit corporation shall:

(i) include qualified members, broadly representing the community, who have sufficient independence from senior management of such corporations and who will provide the board with expertise to oversee the agency's programmatic and fiscal operations, and any other criteria determined by the office;

(ii) the board shall include members from the community in which the services are to be provided;

(iii) board members shall avoid conflicts of interest, including but not limited to self dealings;

(iv) Reimbursement to board members shall be documented and shall be limited to their reasonable costs and expenses in a manner which ensures that the integrity of the not-for-profit corporation will not be compromised;

(v) no compensated employee or consultant of the corporation shall be a corporate director of such board; however, such employee or consultant of the corporation may be an ex officio corporate member without the right to vote;

(vi) family members of senior management of the not-for-profit corporation shall be prohibited from serving on the board unless it can be sufficiently demonstrated to the office that the independence of the board will not be compromised by such appointment;

(vii) board members shall review on a regular basis the not-for-profit's operation, including but not limited to the performance and compensation of senior executives, the financial operations of the provider of services and implementation of corrective actions to ensure compliance with applicable rules and regulations governing such provider;

(viii) There shall be members of the board that can demonstrate and substantiate prior substantial experience directly providing or managing addiction services and maintain such experience going forward, unless the corporation is an Article 28 facility co-licensed by the New York State Department of Health and defined in Article 28 of the Public Health Law.

(2) Business corporations. For purposes of this paragraph, the term business entity shall mean any entity incorporated or proposed to be incorporated or organized under the Business Corporation Law or the Limited Liability Company Law.

(i) If the business entity is an individual practitioner, partnership of practitioners, a professional service limited liability company, or a professional service corporation of practitioners licensed and currently registered by the New York State Education Department in one of the health professions which is authorized to provide addiction services, it is exempt from the requirement of needing an operating certificate from the office so long as all the following conditions are met:

(a) the business entity employs only persons licensed by the New York State Education Department in the same profession to provide professional services;

(b) the business entity practices under a name that does not indicate an intent, ability or willingness to operate an addiction program; and

(c) a professional service corporation, limited liability company and any stockholder or member thereof has obtained all required approvals from the New York State Education Department and the Department of State.

(ii) If the business entity is not an exempt entity under subparagraph (i) of this paragraph, then it shall provide the Commissioner with a proposed certificate of incorporation or certificate of amendment that conforms to the requirements of the Business Corporation Law and the Mental Hygiene Law.

(iii) Board of directors requirements. For all business entities not exempt under subparagraph (i) of this paragraph, the board of directors shall include members with a diversity of experience sufficient to ensure competent direction and control; and

(a) if any such board member is or has been an incorporator, board member, partner or stockholder in an entity which has operated a hospital, or any other type of residential facility certified by the State Department of Health or a residential facility for the developmentally disabled within the last 10 years, the name of each such facility and any interest such individual held or currently holds therein shall be reported to the commissioner;

(b) all stock or ownership certificates of a corporation shall contain a statement that no person shall own 10 percent or more of the stock of the corporation unless such person has been approved for ownership by the Commissioner. The stock or ownership certificate shall also contain a statement that any transfer, assignment or other disposition of 10 percent or more of the stock or of 10 percent or more of the voting rights there under must receive the prior approval of the Commissioner;

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.8 Full review process

(a) Forms.

An application for approval of a project that meets the criteria in section 810.5 of this Part for full review shall be submitted on forms provided by the office, together with such additional information required to address the standards and criteria for approval set forth herein including, but not limited to, instructions on compliance with any required criminal history information review pursuant to Part 805 of this Title.

(b) Signatures.

(1) If the applicant is a corporation, individual, association or agency, the application shall be signed by the chief executive officer or other duly authorized officer.

(2) If the applicant is a partnership, the application shall be signed by a general partner of such partnership.

(3) If the applicant is a local governmental unit, the application shall be signed by the director of community services.

(4) If the applicant is a municipal government other than the local governmental unit, the application shall be signed by the head of the department of the municipal government under which the proposed service is to be operated.

(5) If the applicant is a State or Federal department or agency, the application shall be signed by the head of such department or agency.

(1) Threshold review. Upon receipt of any application indicated by the applicant as being complete, the office will verify that no components of the application are missing. If any components are missing, the application shall be deemed incomplete and returned to the applicant. Applicants may resubmit when the required documentation is provided.

(2) Completeness review.

(i) The Office shall review the content of each application which has passed the threshold review pursuant to paragraph (1) of this subdivision for completeness and if necessary, notify the applicant within a reasonable time (defined as fourteen (14) days from date of receipt for purposes of this Section) from the Office's receipt of such application, of any lack or insufficiency of information and the need to submit such additional information within a reasonable time (defined as no later than thirty (30) days from date of receipt for purposes of this Section) from the date of such notification.

(ii) If the applicant does not provide the additional information within a reasonable time from the date of notification, or within any additional time as may have been approved by the office, the application shall be deemed abandoned and withdrawn and no further action shall be taken thereon.

(iii) The office shall provide notice of status to any applicant requiring criminal history information reviews pursuant to Part 805 of this Title; no application shall be considered complete until such history review, if required, has been concluded.

(iv) The office may at its discretion, based upon review of required criminal history information, decline to consider an application any further.

(d) Local governmental unit review.

If the office determines that the application is eligible for full review:

(1) The Office shall provide copies of the completed application and accompanying documents to each local governmental unit in the area of the proposed project. However, when an application is submitted by a local governmental unit, the application shall not require local governmental unit review.

(2) The local governmental unit shall have a reasonable time to review the application, commencing with its receipt of the application, and submit its recommendations to the office.

(e) Behavioral Health Services Advisory Council.

Upon completion of the office's review, a summary of the application with the recommendation of each responding reviewer shall be submitted to the Behavioral Health Services Advisory Council (Advisory Council) for review and recommendation to the Commissioner.

(1) The Commissioner shall make a decision on the application within a reasonable time (defined as no later than fifteen (15) days from date of receipt, purposes of this Section) after their receipt of the recommendations of the Advisory Council.

(2) If the Commissioner proposes to act on the application in a manner contrary to the recommendation of the Advisory Council, the Commissioner shall first appear before the Advisory Council and explain the reasons for the action, unless the Advisory Council waives such appearance.

(f) When a decision on the application is reached, the Commissioner shall notify the applicant and advise of any additional procedures to be followed for obtaining an operating certificate as applicable. If the applicant does not follow the additional procedures as requested within a reasonable period of time (defined as 180 days from date of receipt for purposes of this Section), the application shall be deemed abandoned and withdrawn, and no further action shall be taken thereon.

(g) An initial operating certificate authorizing the provision of new services shall be issued for a period of no longer than one year and may be subsequently renewed in accordance with the term of renewal established by section 810.14 of this Part.

(h) No applicant approved in accordance with this section shall provide the approved services until the effective date indicated on the operating certificate issued by the Commissioner.

(i) Administrative appeals.

If the commissioner proposes to deny or limit the approval of an application, the commissioner shall notify the applicant and the local governmental unit and provide the reasons for the decision and shall afford the applicant an opportunity for an administrative appeal in accordance with Part 831 of this Title.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.9 Administrative review process

(a) An application for approval of a project that meets the criteria for administrative review in section 810.6 of this Part shall be made in accordance with the provisions of section 810.8(a)-(c) of this Part and the additional provisions of this section.

(b) Local governmental unit review.

If the office determines that the application is eligible for administrative review:

(1) the office shall provide copies of the completed application and accompanying documents to each local governmental unit in the area of the proposed project. However, when an application is submitted by a local governmental unit, the application shall not require local governmental unit review;

(2) the local governmental unit shall have a reasonable time (defined as fourteen (14) days from date of receipt for purpose of this Section) from its receipt of the application, to review the application and provide its recommendations to the office.

(c) If there has been an adverse recommendation of the local governmental unit, the Office shall render a decision on the application. If the applicant objects to the Office's decision the applicant may request an administrative appeal in accordance with Part 831 of this Title.

(d) When a decision on an administrative review is reached, the Commissioner shall notify the applicant and inform them of any additional procedures to be followed for obtaining approval of construction and/or for obtaining an operating certificate based upon the specifics of the project being reviewed. If the applicant does not address the additional procedures within a reasonable period of time as specified by the Office, the application will be deemed abandoned and withdrawn and no other action shall be taken thereon.

(e) An initial operating certificate authorizing the provision of requested services shall be issued for a period of no longer than one year and may be subsequently renewed in accordance with the terms for renewal established in section 810.14 of this Part.

(f) If the services proposed in an approved application require amendment of an existing operating certificate, the services may not be rendered until the effective date indicated on the amended operating certificate issued by the Commissioner.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.10 Actions requiring prior approval

(a) The following changes and actions require prior approval by the commissioner:

(1) the proposed incorporation of a new corporation under the Business Corporation Law or the Not-for-Profit Corporation Law by an individual association or partnership, previously certified by the Office, which involves no additional owners or holders of stock or voting rights of 10 percent or more, other than those approved for the unincorporated entity;

(2) the change in the name by which a certified provider of services is generally known;

(3) a decrease in the capacity of a service where capacity is identified on the operating certificate; or

(4) a reduction in the majority of owners or principals with prior addiction services experience; or

(5) any change in ownership that would result in non-compliance with Section 810.7(a)(6) of this Part.

(b) Upon receipt of written notification by a provider of services requesting prior approval of the proposed actions listed under subdivision (a) of this section, the office shall, within a reasonable time (defined as fourteen (14) days for purpose of this Section) of its receipt of such notification, advise the applicant whether:

(1) the proposed action is acceptable; or

(2) the proposed action is acceptable, provided that certain identified additional actions are followed in implementing the approved change or action; or

(3) additional information must be submitted to the Office in order to make a determination; or

(4) the proposed action is not approved with a statement of the reasons therefore and, as appropriate, identifying acceptable alternatives to the proposed change or action.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.11 Coordination with the Department of Health

In order to avoid duplication of administrative effort, those proposed actions which require a review by both the Office and the Department of Health shall be subject to a single review coordinated by the Office.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.12 Criteria and procedures for approval of management contracts

(a) When a governing authority initially contracts, or renews a contract, with a separate organization to manage or operate some or all of the Office certified services, including the management of clinical services or the employment of managerial or clinical staff, the following requirements shall be met:

(1) The governing authority shall show that a proposed management contractor is a New York State corporation incorporated under the Business Corporation Law or the Not-for-Profit Corporation Law as applicable, and approved as a provider of addiction services by the Office.

(2) The governing authority shall show:

(i) the necessity for the contract;

(ii) the absence of feasible alternatives to the contract; and

(iii) that the proposed contractor has successfully performed similar services in the past.

(3) Each proposed contract shall be submitted to the Office and shall not be effective until the Office has approved it in writing. Each contract shall:

(i) be dated and signed by the authorized representatives of the governing authority and the contractor;

(ii) specify each party's responsibilities, objectives, functions, financial arrangements and charges;

(iii) require compliance with all provisions of law governing such contacts, including this Title and the provisions of part 2 of title 42 of the Code of Federal Regulations;

(iv) specify the powers delegated to the contractor by the governing authority consistent with budgetary limitations set by the governing authority;

(v) specify that powers not specifically provided to the contractor remain with the governing authority;

(vi) specify the term of the contract, the provisions governing renewal, and the provisions governing termination prior to expiration;

(vii) require the contractor to provide all information required by the Office and to cooperate with the Office in carrying out inspections and investigations;

(viii) include the following language: "Notwithstanding any other provision in this contract, the governing authority remains responsible for ensuring that any service provided pursuant to this contract complies with all pertinent provisions of Federal, State and local statutes, rules and regulations";

(ix) retain in the governing authority the authority to remove any person working in the facility or unit regardless of employer or regardless of change in employment status;

(x) state the terms by which the contractor may hire and discharge persons working in the facility or unit; such terms to include, but not be limited to compliance with the provisions of Part 805 of this Title; and

(xi) require the principal administrators of the management contractor, and any employees of such contractor who will have the potential for, or may be permitted, regular and substantial unsupervised or unrestricted physical contact with the clients in the program, to complete a criminal history information review pursuant to Part 805 of this Title.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.13 Certification

(a) Standard certification.

An initial or amended operating certificate shall be issued by the office upon approval of an application through either a full or administrative review process, in accordance with section 810.8 or 810.9 of this Part, as applicable.

(b) Temporary certification.

(1) Emergency certification.

(i) Whenever deemed necessary, the commissioner may issue an emergency operating certificate to a certified provider to continue services in the event of a threat or imminent threat of a catastrophic or emergency loss of available services.

(ii) The provider of services must demonstrate to the office that it meets the requirements of paragraph (3) of this subdivision. The commissioner may require any additional information necessary to assure the safe and efficient operation of the facility.

(iii) An emergency operating certificate to provide services shall be effective upon issuance, for a period established by the commissioner, but not to exceed 120 days.

(iv) The commissioner may extend the emergency authorization to provide services for one additional period not to exceed 120 days.

(2) Conditional certification.

(i) Prior to the issuance or renewal of an operating certificate, a conditional operating certificate may be issued which requires the provider to meet specified conditions in order to maintain its authorization to provide services, and may carry with it a fine or penalty imposed by the office.

(ii) A conditional operating certificate to provide services shall be effective upon issuance, for a period established by the commissioner.

(3) Provisional certification.

(i) A provisional operating certificate will be issued upon approval of the application for authorization to provide services.

(ii) A provisional operating certificate to provide services shall be effective upon issuance, for a period established by the commissioner.

(4) Approval and issuance of temporary operating certificates. Prior to the issuance of any temporary operating certificate in accordance with this subdivision, the office may require that a provider demonstrate the following:

(i) that sufficient levels of staff are employed to effectively support the services to be provided;

(ii) that services will be provided in a safe and efficient manner;

(iii) that, upon inspection, the physical plant and space meets office regulations and standards;

(iv) that financial resources are available to meet operating expenses; and

(v) any other information necessary to assure the safe and efficient operation of the facility.

(5) The provider of services shall acknowledge that it understands the temporary nature of the emergency or conditional operating certificate to provide services and that such certification confers no right to an operating certificate.

(1) A certified provider of outpatient addiction services may operate at one or more additional locations with the approval of the commissioner.

(2) For purposes of this section, an additional location is a place open to the public for the provision of addiction outpatient services which is dependent upon and subordinate to the main location of the provider of services for operation, administration and supervisory activities.

(3) The provider of service shall apply for the additional location approval by completing an application prescribed by the commissioner, clearly indicating the characteristics of the space, the schedule of services, the staffing, demonstrating an involvement or engagement with the community and other relevant information. Each such additional location shall be considered for approval by the commissioner where the provider of services shows a clear need for access to outpatient services at the site proposed as well as a financial and programmatic ability to provide the service.

(4) Each additional location shall have adequate space to allow for the type and volume of services planned at the location. Unless impractical, patient evaluation and medical services shall also be conducted by professional staff of the main location.

(5) There shall be sufficient staffing, including an appropriate number of qualified health professionals as defined in this title, to provide the proposed type and volume of services during the hours the location is open. Procedures shall be established to insure that utilization review and case supervision shall be conducted by professional staff of the main location.

(6) Policies and procedures shall be developed which describe the subordinate relationship of the additional location to the main location, ensure that all operating regulations are met, and ensure that each person served primarily at an additional location has access to, as needed, the same character and quality of service available to persons served at any other location.

(7) The application shall be reviewed in accordance with section 810.9 of this Part.

(8) If the Office proposes to limit approval of an application for an additional location, or if there has been an adverse recommendation of the local governmental unit, the Office shall offer the applicant an opportunity to submit the application for full review in accordance with section 810.8 of this Part. If either the applicant or the local governmental unit objects to the Office's recommendation to either limit approval of the application, or submit the application for full review, either the applicant or the local governmental unit may request an administrative appeal in accordance with Part 831 of the Title.

(9) Opioid Treatment Programs.

Medication units established as an additional location of an Opioid Treatment Program certified pursuant to Part 822 of this Title, whether mobile, stand alone or integrated within another certified program, shall be required to meet all applicable federal rules, regulations and any guidance issued by the Office.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.14 Inspection and reviews

(a) Certified providers of services shall be inspected at least two times per year, once without prior notice, for compliance with rules, regulations, policies, procedures and requirements of the office. In the sole discretion of the office, providers with established records of substantial compliance may be inspected only once per year, provided such inspection is without notice.

(b) Activities which shall constitute inspections for purposes of satisfying the requirements of subdivision (a) of this section include, but are not limited to:

(1) a recertification review, made pursuant to this section;

(2) an interim regulatory compliance review, made pursuant to subdivision (f) of this section;

(3) an interim or annual performance review, made pursuant to Office policy;

(4) a focused or targeted review, made pursuant to Office policy;

(5) a facilities evaluation, made pursuant to Office policy;

(6) a fiscal audit or review, made pursuant to Office policy;

(7) corrective action plan monitoring;

(8) a cursory on-site visit; and

(9) an accreditation survey, completed by a nationally recognized accrediting organization.

(c) Prior to the expiration of an operating certificate, the office shall conduct a recertification review for purposes of assessing a provider's compliance with applicable laws, rules and regulations and to determine the renewal term of the operating certificate.

(1) Recertification reviews shall be conducted on an unannounced basis and may include, but not be limited to, the following areas of review:

(i) inspection of facility appearance, conditions and general safety;

(ii) evaluation of the governing authority;

(iii) interviews of staff and patients/clients;

(iv) examination of staffing patterns, staff credentials and qualifications;

(v) compliance with the requirements of Part 836 of this Title, guidance issued by the Office and applicable rules and regulations of the Justice Center; and

(vi) such other operating areas or activities as may be necessary to determine compliance with applicable laws, rules and regulations.

(2) Fiscal viability reviews shall include an assessment of the financial information of the provider of services. Such information shall be submitted in intervals and in a form prescribed by the Office, for compliance with minimum standards established by the office, in order to determine the provider's fiscal capability to effectively support the authorized services.

(3) The specific renewal term shall be based on the results of the recertification review and fiscal viability review, utilizing the lowest compliance rating achieved by the provider of services on either the recertification review or fiscal viability review, except as otherwise provided in subdivision (i) of this section.

(d) The inspection process shall include appropriate reporting and corrective action follow-up subsequent to the review, including the possibility of initiating an unannounced interim inspection which may encompass the areas of review listed under subdivision (e) of this section, to assure attention to and correction of cited deficiencies.

(1) Upon completion of an inspection, office staff shall, within forty-five 45 days of such completion, submit a written report to the provider of services describing the results of such review, including each regulatory deficiency identified, if any.

(2) The provider of services shall take all actions necessary to correct the deficiencies reported. If instructed the provider of services shall submit a corrective action plan, which is deemed satisfactory by the Office, within a specified period of time, as directed by the Office, stating the specific actions taken or planned to achieve compliance with identified requirements. Any planned actions described in the corrective action plan must be accompanied with a timetable for their implementation.

(3) If the provider of services fails, within the specified or an otherwise reasonable time, to correct any reported deficiencies, or fails to maintain satisfactory compliance with applicable laws, rules and regulations, the Commissioner may revoke, suspend or limit the operating certificate or levy a civil fine for such failures, in accordance with section 810.16 of this Part.

(e) The office shall not perform fiscal viability reviews of governmental agencies or hospitals authorized by the Office and/or the Department of Health.

(f) Any fines imposed by the Commissioner against the provider of services must be paid in full before an operating certificate may be renewed.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.15 Suspension, revocation or limitation of operating certificates

(a) Any operating certificate may, on written notice to the provider of services, be suspended, revoked or limited at any time for any of the following reasons:

(1) the provider of services, or anyone on its behalf, has procured any approval or certification through fraud or deceit;

(2) the Office, or any other State agency, has revoked any other approval, authorization or certificate issued to the provider;

(3) any principal of the provider of services has been convicted in a court of competent jurisdiction, either within or without the State, of a felony, or has been convicted of an act in another state that would be a felony in New York State;

(4) the provider of services has failed to report any important change in the information about a project as required by section 810.7(e) of this Part;

(5) the provider of services has failed to operate in accordance with the representations made in its application;

(6) the provider of services has failed to comply with any terms and conditions established by the Commissioner on which any operating certificate was issued;

(7) the provider of services has failed to operate in compliance with any applicable law, rule or regulation or any combination thereof; and/or

(8) the provider ceases to provide, or fails to commence, the services that it is authorized to provide.

(b) If an inspection of the provider of services, made pursuant to section 810.14(b) of this Part, identifies that a provider of service is not in compliance with any of the rules, regulations, policies, procedures and requirements of the Office, a written notification of the deficiencies identified shall be delivered to the provider.

(1) The provider of services shall respond to the notification of deficiencies within stipulated time frames. The provider of services' response must include a plan for the correction of the noted deficiencies or an explanation, deemed satisfactory to the Office, of the reason for any deviations from the requirements of the Office.

(2) If the provider of services fails to correct deficiencies or fails to provide reasonable justification for its failure to take action, the Commissioner may impose sanctions on or require other corrective measures by the provider. Sanctions may include suspension, revocation, or limitation of the operating certificate, or the levying of a civil fine in accordance with the Mental Hygiene Law.

(3) The imposition of any sanction shall be effected by the delivery of a notice, clearly stating the sanction imposed and the violation(s) for which the sanction is imposed, to the provider of services.

(c) If there are reasonable grounds to believe that continued operation presents an immediate danger to the health and welfare of the public or any person receiving services, the Commissioner may, upon written notice to a provider of services, immediately suspend an operating certificate or an emergency or conditional operating certificate for up to 30 days.

(d) A provider of services may request an opportunity for a hearing regarding any suspension, revocation or limitation, pursuant to Part 831 of this Title. If the time period for requesting a hearing has expired, or, after the hearing has been held based on the findings of such hearing, the commissioner may impose any of the following penalties:

(1) revocation of the operating certificate;

(2) suspension of the operating certificate, during which period of suspension the provider must discontinue operation of the addiction services; or

(3) limitation of the operating certificate to temporarily or permanently prohibit the provider of services from operating certain identified programs or services, reducing the number of beds, restricting the number or types of patients served or other limitation determined appropriate by the Commissioner; and/or

(4) in addition to or in lieu of any suspension, revocation or other terms and conditions imposed by the commissioner, imposition of a fine of up to $1,000 for each separate incident of failure to comply with a requirement of law, rule, regulation or condition of certification: or, up to $1,000 for each day of a continuing failure to comply with any such requirement.

(e) Appointment of a Temporary Operator.

(1) The Commissioner may appoint a Temporary Operator when:

(i) a program voluntarily requests the appointment of a Temporary Operator

(ii) the program is seeking extraordinary financial assistance;

(iii) the office collected data indicates that the program is experiencing serious financial instability issues;

(iv) the office collected data indicates that the program's board of directors or administration are unable or unwilling to ensure the proper operation of the program; or

(v) the office collected data indicates there are conditions that seriously endanger or jeopardize continued access to necessary addiction treatment services within the community.

(2) The appointment of a Temporary Operator shall be effectuated pursuant to § 32.20 of the Mental Hygiene Law and for a Mandatory Temporary Operator notice shall be given to the program via registered or certified mail and shall include a detailed description of the findings underlying the intention to appoint a Temporary Operator, along with the date and time of a required meeting with the Commissioner or their designee within ten (10) business days of the receipt of such notice. At such meeting, the established operator shall have the opportunity to review all relevant findings, and shall attempt to develop a mutually satisfactory plan of correction and schedule for implementation.

(3) In the event that the Commissioner and the program are unable to establish such plan of correction, or should the program fail to respond to the initial notification, there shall be an administrative hearing on the Commissioner's determination to appoint a temporary operator to begin no later than thirty (30) days from the date of the notice to the program. If the decision to appoint a Temporary Operator is upheld, the Temporary Operator shall be appointed as soon as is practicable and shall operate the program pursuant to § 32.20.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.16 Voluntary termination of authorized services

(a) A provider of services must provide the office with notice of any voluntary termination of any authorized service(s) and submit a termination plan at least six (6) months prior to the voluntary termination. Such termination plan shall be submitted in a format prescribed by the Office and shall include, at a minimum, a comprehensive description of clearly defined actions that will be taken to:

(1) assure appropriate referral of patients;

(2) preserve the confidentiality of patient records; and

(3) ensure appropriate access to patient records, financial records and other accounts.

(b) Implementation of the termination process shall not commence until the termination plan has been approved by the Office.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.17 Ownership of operating certificates

All operating certificates shall remain the property of the Office, are non-transferable, and must be returned to the office upon revocation or voluntary termination.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 810.18 Severability

If any provision of this Part of the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

Part 812 Limits On Administrative Expenses And Executive Compensation

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.1 Background and intent

The purpose of this Part is to implement Executive Order No. 38, issued by Governor Andrew Cuomo on January 18, 2012, by exercising the authority of the commissioner of the Office of Alcoholism and Substance Abuse Services to issue regulations governing the use of State funds and State-authorized payments in connection with providing program services to members of the public. E.O. No. 38 provides for a limit on administrative expenses and executive compensation of providers of program services in order to meet the State's ongoing obligation to ensure the proper use of taxpayer dollars and the most effective provision of such services to the public.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.2 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the commissioner (commissioner) of the office to adopt standards including necessary rules and regulations pertaining to chemical dependence services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 19.40 of the Mental Hygiene Law authorizes the commissioner to issue operating certificates for the provision of chemical dependence services.

(f) Section 32.02 of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary to ensure quality services to those suffering from problem gambling.

(g) Section 32.07 (a) of the Mental Hygiene Law authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of article 32 of the Mental Hygiene Law.

(h) Section 43.02 of the Mental Hygiene Law authorizes the establishment of rates or methods of payment for services at facilities subject to licensure or certification by the office.

(i) Executive Order Number 38 requires the promulgation of regulations and related actions to address the extent and nature of state funded providers' administrative costs and executive compensation which shall be eligible for reimbursement with State financial assistance or State-authorized payments for operating expenses.

(j) Section 508 of the Not-for-Profit Corporation Law requires any incidental profit from fees charged for services shall be applied to the maintenance, expansion or operation of the activities of the not for profit corporation and in no case be distributed among members, directors or officers of the corporation.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.3 Definitions

For purposes of this Part:

(ii) that portion of legal expenses that cannot be attributed directly to the provision of program services; and

(2) Administrative expenses do not include:

(i) capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property; or

(ii) property rental, mortgage or maintenance expenses;

(iii) taxes, payments in lieu of taxes, or assessments paid to any unit of government; or

(iv) equipment rental, depreciation and interest expenses, including expenditures for vehicles, and fixed, major movable and adaptive equipment that is expensed (rather than depreciated) in cost reports; or

(v) expenses and equipment that is expensed rather than depreciated in cost reports of an amount greater than $10,000 that would otherwise be administrative, except that they are either non-recurring (no more frequent than once every five years) or not anticipated by a covered provider (e.g., litigation-related expenses). Such expenses shall not be considered administrative expenses or program expenses for purposes of this regulation; or

(vi) that portion of the salaries and benefits of staff performing policy development or research.

(b) Covered operating expenses shall mean the sum of program services expenses and administrative expenses of a covered provider as such terms are defined in this section.

(c) Covered executive is a compensated director, trustee, managing partner, or officer whose salary and/or benefits, in whole or in part, are administrative expenses, and any key employee whose salary and/or benefits, in whole or in part, are administrative expenses and whose executive compensation during the reporting period exceeded $199,000. For the purposes of this definition, the terms director, trustee, officer, and key employee shall have the same meaning as such terms in the Internal Revenue Service's instructions accompanying Form 990, Part VII. If the number of key employees employed by the covered provider who meet this definition exceeds 10, then the covered provider shall report only those 10 key employees whose executive compensation is the greatest during the reporting period and no other key employees shall be considered covered executives. Clinical and program personnel in a hospital or other entity providing program services, including chairs of departments, heads of service, chief medical officers, directors of nursing, or similar types of personnel fulfilling administrative functions that are nevertheless directly attributable to and comprise program services shall not be considered covered executives for purposes of limiting the use of State funds or State-authorized payments to compensate them. In the event that a covered provider pays a related organization to perform administrative or program services, the covered executives of the related organization shall also be considered covered executives of the covered provider for purposes of reporting and compliance with these regulations if more than 30 percent of such a covered executive's compensation is derived from State funds or State-authorized payments received from the covered provider. In such a circumstance, the related organization shall not be subject to the limitations on the use of State funds or State-authorized payments for administrative expenses in section 812.4 of this Part solely as a result of having covered executives.

(d) Covered provider is an entity or individual that:

(1) has received pursuant to contract or other agreement with the office, or with another governmental entity, including county and local governments, or an entity contracting on its behalf, to render program services, State funds or State-authorized payments during the covered reporting period and the year prior to the covered reporting period, and in an average annual amount greater than $500,000 during those two years; and

(2) at least 30 percent of whose total annual in-state revenues for the covered reporting period and for the year prior to the covered reporting period were from State funds or State-authorized payments. This percentage shall be calculated as a percentage of the total annual revenues derived from and in connection with the provider's activities within New York State, irrespective of whether the provider derives additional revenues from activities in another state. The source of such revenues shall include those from sources outside New York State if such revenues were derived from or in connection with activities inside New York State, including, for example, contributions by out-of-state individuals or entities for in-state activities. Where applicable, a provider's method of calculating in-state revenues for purposes of determining tax liability or in connection with completion of its financial statements shall be deemed acceptable by the office for the purpose of applying this paragraph.

(3) For purposes of this Part, the method of accounting used by the entity or individual in the preparation of its annual financial statements shall be used, except that an entity or individual that otherwise reports to the office using a different method of accounting shall use such method.

(4) The following providers shall not be considered covered providers:

(i) State, county, and local governmental units in New York State, and tribal governments for the nine New York State recognized nations; and any subdivisions or subsidiaries of the foregoing entities;

(ii) individuals or entities providing child care services who are in receipt of child care subsidies pursuant to title 5-C or section 410 of the Social Services Law, except that such providers may be considered a covered provider if it also receives State funds or State-authorized payments that are not child care subsidies pursuant to title 5-C or section 410 of the Social Services Law and would otherwise satisfy the criteria in this definition;

(iii) individual professional(s), partnerships, S corporations, or other entities at least 75 percent of whose program services paid for by State funds or State-authorized payments are provided by the individual professional(s), partner(s), or by the owner(s) of the corporation or entity, rather than by employees or independent contractors employed or retained by the entity, as determined by the amounts obtained in State funds or State-authorized payments for such program services;

(e) Covered reporting period shall mean the provider's most recently completed annual reporting period, as defined herein, commencing on or after July 1, 2013.

(f) Executive compensation shall include all forms of cash and noncash payments or benefits given directly or indirectly to a covered executive, including but not limited to salary and wages, bonuses, dividends, distributions to a shareholder/partner from the current reporting period's earnings where such distributions represent compensatory or guaranteed payments or compensatory partnership profits allocation or compensatory partnership equity interest for services rendered during such reporting period, and other financial arrangements or transactions such as personal vehicles, housing, below-market loans, payment of personal or family travel, entertainment, and personal use of the organization's property, reportable on a covered executive's W-2 or 1099 form, except that mandated benefits (e.g., Social Security, worker's compensation, unemployment insurance and short-term disability insurance), and other benefits such as health and life insurance premiums and retirement and deferred compensation plan contributions that are consistent with those provided to the covered provider's other employees shall not be included in the calculation of executive compensation. For the purposes of this definition, such benefits shall be considered consistent with those provided to other employees where the intended value of the benefit is substantially equal, even where the cost to the covered provider to provide such a benefit may differ. With respect to employer contributions to retirement and deferred compensation plans that are not consistent with those provided to other employees, executive compensation shall be deemed to include only those amounts contributed or accrued during the reporting period for the benefit or intended benefit of the covered executive, even if not reported on the executive's W-2 or 1099 for that reporting period (but not those amounts that vested during such period but were contributed or accrued prior to the period).

(g) Office means the New York State Office of Alcoholism and Substance Abuse Services.

(1) policy development or research; or

(2) staffing or other assistance to a State agency or local unit of government in such agency's or government's provision of services to members of the public.

(2) Program services expenses do not include:

(i) capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property;

(iii) taxes, payments in lieu of taxes, or assessments paid to any unit of government; or

(iv) equipment rental, depreciation and interest expenses, including expenditures for vehicles and fixed, major movable and adaptive equipment that is expensed (rather than depreciated) in cost reports; or

(vi) that portion of the salaries and benefits of staff performing policy development or research.

(1) procurement contracts awarded on a lowest price basis pursuant to section 163 of the State Finance Law;

(3) capital expenses, including but not limited to non-personal service expenditures for the purchase, installation, development and maintenance of real estate or other real property, or equipment;

(4) direct payments of State funds or State-authorized payments, or provision of vouchers or other items of monetary value that may used to secure specific services selected by the individual, or health insurance premiums including but not limited to New York State Health Insurance Program (NYSHIP) premium payments, or Supplemental Security Income (SSI) payments, to or on behalf of individual members of the public;

(5) wage or other salary subsidies paid to employers to support the hiring or retention of their employees;

(6) awards to for-profit corporations or other entities engaged exclusively in commercial or manufacturing activities and not in the provision of program services;

(7) policy development or research; or

(8) funds expressly intended to pay exclusively for administrative expenses, including but not limited to Community Service Program core contract funding for HIV/AIDS services programs.

(1) procurement contracts awarded on a lowest price basis pursuant to section 163 of the State Finance Law;

(3) capital expenses, including but not limited to non-personal service expenditures for the purchase, installation, development and maintenance of real estate or other real property, or equipment;

(5) wage or salary subsidies paid to employers to support the hiring or retention of their employees;

(6) awards to for-profit corporations or other entities engaged exclusively in commercial or manufacturing activities and not in the provision of program services;

(7) policy development or research; or

(8) funds expressly intended to pay exclusively for administrative expenses, including but not limited to Community Service Program core contract funding for HIV/AIDS services programs.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.4 Limits on administrative expenses

(b) Subcontractors and agents of covered providers. The restriction on allowable administrative expenses in subdivision (a) of this section and the reporting requirements in section 812.7 of this Part shall apply to subcontractors and agents of covered providers if and to the extent that such a subcontractor or agent has received State funds or State-authorized payments from the covered provider to provide program or administrative services during the reporting period and would otherwise meet the definition of a covered provider but for the fact that it has received State funds or State-authorized payments from the covered provider rather than directly from a governmental agency. A covered provider shall incorporate into its agreement with such a subcontractor or agent the terms of these regulations by reference to require and facilitate compliance. Upon request, covered providers shall promptly report to the funding or authorizing agency the identity of such subcontractors and agents, along with any other information requested by that agency or by the office or its designee. A covered provider shall not be held responsible for a subcontractor's or agent's failure to comply with these regulations.

(c) Covered providers receiving State funds or State-authorized payments from a county or local government or from an entity contracting on its behalf. The office or its designee, rather than the county or local unit of government, shall be responsible for obtaining the necessary reporting from and compliance by such covered providers, and shall issue guidance to affected county and local governments to set forth the procedures by which the office or its designee shall do so.

(d) Covered providers with multiple sources of State funds or State-authorized payments. If a covered provider receives State funds or State-authorized payments from multiple sources, the provider's compliance with the restriction on allowable administrative expenses in subdivision (a) of this section shall be determined based upon the total amount program services expenses and administrative expenses paid for by such funding received from all of such sources. As set forth in section 812.7 of this Part, the covered provider shall report all of such State funds and State-authorized payments, and the expenses paid for by such funding, in the form and at the time specified by the office or its designee.

(e) Other limits on administrative expenses. If the contract, grant, or other agreement is subject to more stringent limits on administrative expenses, whether through law or contract, such limits shall control and shall not be affected by the less stringent limits imposed by these regulations. However, the definition and interpretation of terms in this Part shall not be affected or limited by the definition or interpretation of terms in other regulations or agreements.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.5 Limits on executive compensation

(a) Limits on executive compensation.

Except if a covered provider has obtained a waiver pursuant to section 812.6 of this Part, a covered provider as defined in this regulation shall not use State funds or State-authorized payments for executive compensation given directly or indirectly to a covered executive in an amount greater than $199,000 per annum, provided, however, that the Division of Budget shall review this figure annually to determine whether adjustment is necessary based on appropriate factors and subject to the approval of the Director of the Division of the Budget. Commencing on July 1, 2013, the limits on executive compensation pursuant to this Part shall be effective and applicable to each covered provider on the first day of each covered provider's respective covered reporting period.

(b) Program services rendered by covered executives.

The limit on executive compensation pursuant to this Section shall not be applied to limit reimbursement with State funds or State-authorized payments for reasonable compensation paid to a covered executive for program services, including but not limited to supervisory services performed to facilitate the covered provider's program services, rendered by the executive outside of his or her managerial or policy-making duties. Documentation of such program services rendered shall be used by the covered provider to determine that percentage, if any, of the covered executive's compensation that is attributable to program services and that compensation shall not be considered in the calculation of his or her executive compensation. Such documentation shall be maintained and provided to the office or its designee upon request. Clinical and program personnel in a hospital or other entity providing program services, including chairs of departments, heads of service, chief medical officers, directors of nursing, or similar types of personnel fulfilling administrative functions that are nevertheless directly attributable to and comprise program services shall not be considered covered executives for purposes of limiting the use of State funds or State-authorized payments to compensate them.

If a covered provider receives State funds or State-authorized payments from multiple sources, the provider's compliance with the limits on executive compensation in subdivision (a) of this section shall be determined based upon the total amount of such funding received and the reimbursements received from all sources of State funds or State-authorized payments. As set forth in section 812.7 of this Part, the covered provider shall report all of such State funds and State-authorized payments in the form specified by the office or its designee.

(d) Subcontractors and agents of covered providers.

The limits on executive compensation in subdivision (a) of this section and the reporting requirements in section 812.7 of this Part shall apply to subcontractors and agents of covered providers if and to the extent that such a subcontractor or agent has received State funds or State-authorized payments from the covered provider to provide program or administrative services during the reporting period and would otherwise meet the definition of a covered provider but for the fact that it has received State funds or State-authorized payments from the covered provider rather than directly from a governmental agency. A covered provider shall incorporate into its agreement with such a subcontractor or agent the terms of these regulations by reference to require and facilitate compliance. Upon request, covered providers shall promptly report to the funding or authorizing agency the identity of such subcontractors and agents, along with any other information requested by that agency or by the office or its designee. A covered provider shall not be held responsible for a subcontractor's or agent's failure to comply with these regulations.

(e) Covered providers receiving State funds or State-authorized payments from county or local government or an entity on contracting on its behalf.

The office or its designee, rather than the county or local unit of government, shall be responsible for obtaining the necessary reporting from and compliance by such covered providers, and shall issue guidance to affected county and local governments to set forth the procedures by which the office or it designee shall do so.

(f) Other limits on executive compensation.

If the contract, grant, or other agreement is subject to more stringent limits on executive compensation, whether through law or contract, such limits shall control and shall not be affected by the less stringent limits imposed by these regulations. However, the definition and interpretation of terms in this Part shall not be affected or limited by the definition or interpretation of terms in other regulations or agreements.

(g) A covered provider's contract or other agreement with a covered executive agreed to prior to July 1, 2012 shall not be subject to the limits in this section during the term of the contract, except that:

(2) renewals of such contracts or agreements after the completion of their term must comply with these regulations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.6 Waivers

(a) Waivers for limit on executive compensation. The office or its designee and the Director of the Division of the Budget may grant a waiver to the limits on executive compensation in section 812.5 of this Part for executive compensation for one or more covered executives, or for one or more positions, during the reporting period and, where appropriate, for a longer period upon a showing of good cause. To be considered, an application for such a waiver must comply with this subsection in its entirety.

(1) The application must be filed no later than concurrent with timely submission of the covered provider's EO No. 38 disclosure form required pursuant to section 812.7 of this Part for the reporting period for which the waiver is requested. The application shall be transmitted in the manner and form specified by the office or its designee and the Director of the Division of the Budget. The office shall consider untimely waiver applications where a reasonable cause for such delay is shown.

(iii) the nature, size, and complexity of the covered provider's operations and the program services provided;

(iv) the provider's review and approval process for the executive compensation that is the subject of the waiver, including whether such process involved a review and approval by the board of directors or other governing body (if such board or body exists), whether such review was conducted by at least two independent directors or independent members of the governing body, whether such review included an assessment of comparability data including a compensation survey, and contemporaneous substantiation of the deliberation and decision to approve such executive compensation;

(v) the qualifications and experience possessed by or required for the covered executive(s) or position(s), respectively; and

(vi) the provider's efforts, if any, to secure executives with the same levels of experience, expertise, and skills for the positions of covered executives at lower levels of compensation.

(3) A waiver to the limits set forth in section 812.5 of this Part shall be granted only where a covered provider has demonstrated good cause supporting such a waiver, and has provided any documentation requested by the office or its designee or the Director of the Division of the Budget to support such a waiver. Unless additional information has been requested but not received from the covered provider, a decision on a timely submitted waiver application shall be provided no later than 60 calendar days after submission of the application.

(i) the executive compensation that is the subject of the waiver increases by more than five percent in any calendar year; or

(ii) upon notice provided at the discretion of the office or its designee as a result of additional relevant circumstances.

(b) Waivers for limit on reimbursement for administrative expenses. The office or its designee and the Director of the Division of the Budget may grant a waiver to obtain reimbursement for administrative expenses incurred during the reporting period and thereafter in excess of the limit set forth in section 812.4 of this Part upon a showing of good cause. To be considered, an application for such a waiver must comply with this subsection in its entirety.

(1) The application must be filed no later than concurrent with the timely submission of the covered provider's EO No. 38 disclosure form for the period for which the waiver is requested, as required pursuant to section 812.7 of this Part. The office shall consider untimely waiver applications where a reasonable cause for such delay is shown.

(i) the extent to which the administrative expenses that are the subject of the waiver are necessary or avoidable;

(iii) the nature, size, and complexity of the covered provider's operations and the program services provided;

(iv) the provider's efforts to monitor and control administrative expenses and to limit requests for reimbursement for such costs; and

(v) the provider's efforts, if any, to find other sources of funding to support its administrative expenses and the nature and extent of such efforts and funding sources.

(3) A waiver to the limit set forth in section 812.4 of this Part shall be granted only where a covered provider has demonstrated good cause supporting such a waiver, and has provided any documentation requested by the office or its designee or the Director of the Division of the Budget to support such a waiver. Unless additional information has been requested but not received from the covered provider, a decision on a timely submitted waiver application shall be provided no later than 60 calendar days after submission of the application.

(1) If the office or its designee or the Director of the Division of the Budget propose to deny a request for waiver made pursuant to section 812.6 of this Part, the applicant shall be given written notice of the proposed denial, stating the reason or reasons for such proposed denial. Such notice shall be sent by certified mail and shall be a final determination to be effective 30 calendar days from the date of the notice, unless reconsideration is requested.

(2) If the office or its designee or the Director of the Division of the Budget provide a notice of proposed denial, the applicant may request reconsideration of the proposed denial by submitting a written request for reconsideration within 30 calendar days of the date of the notice of proposed denial. Submission of a request for reconsideration within 30 calendar days shall stay any action to deny an applicant's request for a waiver, pending a decision regarding such request for reconsideration, and shall stay any action to enter into a contract or other agreement. Any vouchers submitted by the applicant for payment by the office during which such reconsideration is pending may be considered incomplete at the office's discretion.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.7 Reporting

(a) Reporting by covered providers. Beginning after the effective date of this regulation, covered providers shall submit a completed EO No. 38 disclosure form for each covered reporting period. Such form shall be submitted no later than 180 calendar days following the covered reporting period, unless otherwise authorized. Such form shall be submitted in the manner and form specified by the office or its designee. Covered providers shall further provide the information requested in that form, and any other information requested, upon the request of the office or its designee at any time during the term of or prior to the execution of any contract or agreement with such provider.

(b) Covered providers receiving State funds or State-authorized payments from county or local government or an entity contracting on its behalf, must report directly to the office as required by this section. The county or local government shall advise such covered providers of their obligation to report directly to the office under this section, but shall not be responsible for receiving or forwarding such reports to the department.

(c) Failure to report. A covered provider's failure to submit a completed EO No. 38 disclosure form, or to provide additional or clarifying information at the request of the office or its designee, may result in the termination or non-renewal of a contract or agreement for State funds or State-authorized payments.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.8 Penalties

(a) Notice of preliminary determination of non-compliance. Whenever it is determined that a covered provider may not be in compliance with the requirements of section 812.4 or 812.5 of this Part and has not obtained a waiver, the provider shall be notified in writing of the basis for that determination. Such notice shall provide the covered provider with an opportunity and a procedure to submit additional or clarifying information within 30 calendar days of the provider's receipt of such notice to demonstrate compliance with this Part. Failure to submit additional or clarifying information within the required time period shall result in the determination of non-compliance becoming final.

(b) Corrective action period. If the determination of non-compliance becomes final as set forth in subdivision (a) of this section or if the office or its designee determines, after reviewing and considering any information submitted by the covered provider, that such provider is not in compliance with the requirements of section 812.4 or 812.5 of this regulation, the provider shall receive notice of such determination and a notice to cure. Such notice shall allow the covered provider a period of not less than six months to correct the violation(s) identified (the corrective action period) prior to additional enforcement action or penalties being imposed, and shall require that the covered provider submit within 30 calendar days a corrective action plan (CAP) for approval by the office or its designee.

(d) Failure to cure. At the conclusion of the period for implementation of an approved CAP, the office or its designee may request information from the covered provider to determine whether the CAP has been fully and properly completed. If it has been so completed, the matter shall be considered closed and no further action on the part of the office or the provider shall be required. If the office or its designee determines that the CAP has not been fully and properly implemented within the designated corrective action period, the office or its designee shall provide written notice to the provider and may take one or more of the following actions, taking into account the seriousness of the violations, the nature of the provider's services, and the provider's efforts to correct the violations, if any:

(1) At its sole discretion, modify the CAP and/or extend the time for the provider to complete implementation.

(2) Issue a final determination of non-compliance, together with a notice of the sanctions which the office seeks to impose. Such sanctions may include:

(i) redirection of State funds or State-authorized payments to be used to provide program services, where possible and consistent with federal and state laws;

(ii) suspension, modification, limitation, or revocation of the provider's license(s) to operate program(s) for the delivery of program services;

(iii) suspension, modification or termination of contracts or other agreements with the covered provider; and

(iv) any other lawful actions or penalties deemed appropriate by the office or its designee.

(e) Opportunity for appeal. Within 30 calendar days of receipt of a final determination of noncompliance and notice of proposed sanctions, a covered provider may request an administrative appeal by submitting a written request to the name and address set forth in the notice. The request must include a detailed explanation of the legal and factual bases for the provider's challenge to the determination and all documentation in support of the provider's position. If a request for an administrative appeal is not made within the required ten business days, the determination of noncompliance shall become final and the proposed sanction shall be imposed. Unless the office seeks to impose a sanction for which an administrative hearing is otherwise required by statute or regulation, covered the provider's appeal shall be limited to an administrative review of the record. Following the review, the covered provider shall be provided with a final written determination setting forth the findings of fact and conclusions of law that support the determination. If the provider is found to be non-compliant, the proposed sanction may be imposed forthwith.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 812.9 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.

Part 813 Financial Assistance for Capital Improvement Projects

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.1 Background and intent

This Part sets forth the requirements and conditions for receipt of funding assistance for capital improvement projects proposed or undertaken by eligible providers of addiction services certified and funded by the Office of Alcoholism and Substance Abuse Services ("Office" or "OASAS") to ensure appropriate use by providers and security of monies made available from state funding sources.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.2 Applicability

(a) Certified programs operated by a municipality or a voluntary agency, as defined in this Part, or a proposed incorporator of a voluntary agency may apply to the Office for financial assistance for capital projects in the form of a state aid grant, the amount of which shall be available from amounts appropriated to the Office and approved by the Division of Budget ("DOB").

(b) Voluntary agencies, cities, and counties (towns are excluded) may also apply for financial assistance from the Dormitory Authority of the State of New York (DASNY), successor to the Facilities Development Corporation (FDC), through the Office as its agent.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.3 Legal base

(a) Section 19.09 (b) of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his/her jurisdiction and to assist local governmental units and nongovernmental providers of addiction services in the development of local treatment programs and to make direct grants to nonprofit agencies for such purposes.

(b) Section 19.21 (b) of the Mental Hygiene Law requires the commissioner to establish and enforce regulations concerning the licensing of programs for the provision of addiction services.

(c) Section 32.05 of the Mental Hygiene Law MHL authorizes the commissioner to issue operating certificates for the provision of chemical dependence treatment services.

(d) Section 32.01 of the Mental Hygiene Law authorizes 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 MHL.

(e) Article 25 of the Mental Hygiene Law authorizes the Office, subject to the approval of the Office of the Budget (DOB), to provide state aid funding to programs or local agencies for the provision of addiction services and expenses related to the capital costs of such programs upon such terms and conditions as the Office deems appropriate.

(f) The Facilities Development Corporation Act (Chapter 359 of the Laws of 1968), authorizes the commissioner to promulgate regulations regarding financing or refinancing by voluntary agencies of treatment facilities with proceeds realized from the sale of tax exempt bonds and notes issued by the Medical Care Facilities Finance Agency and provided to the Facilities Development Corporation (FDC) for such purposes.

(g) Section five of the Facilities Development Corporation Act authorizes The Dormitory Authority of the State of New York ("DASNY"), created pursuant to chapter 392 of the Laws of 1973 as successor to the Facilities Development Corporation, to issue negotiable bonds and notes to provide funds for the financing or refinancing of capital improvements to mental hygiene facilities.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.4 Definitions

(a) "Applicant" means a certified program operated by a municipality or a voluntary agency or a proposed incorporator of a voluntary agency applying for a state aid grant pursuant to article 25 of the Mental Hygiene Law; or a certified program operated by a county, city or voluntary agency applying for DASNY financing pursuant to section five of the Facilities Development Corporation Act.

(b) "Capital costs" means the costs to a program operated by an applicant with respect to the acquisition of real property estates, interests, and cooperative interests in realty, their design, construction, reconstruction, rehabilitation and improvement, original furnishings and equipment, site development, and appurtenances of a facility.

(c) "DASNY loan" means a loan to an eligible applicant from proceeds of a DASNY bond sale for all or part of the actual approved capital costs of a facility for the treatment of addictive disorders, subject to the terms and conditions of a mortgage and financing agreement.

(d) "Local governmental unit" (LGU) means the unit of local government given authority to provide local or unified services to persons and their families who suffer from addictive disorders.

(e) "Letter of Understanding and Intent" (LOUI) means a commitment letter issued by the commissioner authorizing an eligible applicant to secure private financing for the maximum amount approved by Division of Budget for a capital project, such private financing to be subsequently refinanced with a DASNY loan.

(f) "State aid grant" means state aid, pursuant to article 25 of the Mental Hygiene Law, for all or part of the actual approved capital costs of a facility for the treatment of addictive disorders, subject to a lien, mortgage or other security required by the commissioner.

(g) "State Aid Grant Lien" means a recorded lien on a facility improved with financing from a state aid grant or refinanced by a DASNY loan, such lien to secure for a term of years the exclusive use of the improved facility for the provision of Office certified services.

(h) "Voluntary agency" means a corporation organized or existing pursuant to the not-for-profit corporation law for the purpose of providing local services including substance use disorder treatment, compulsive gambling treatment, prevention or other authorized addiction disorder services.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.5 Requirements for a State Aid Grant or Letter of Understanding and Intent

(a) Site control.

(1) Prior to receiving funds an applicant must have, or be under contract to have, a fee simple or such other estate or interest in the site, including necessary easements and rights of way, sufficient to assure for a period of years, as such period may be determined by the Office, undisturbed use and possession of the facility. The nature and extent of an applicant's present or anticipated property rights in the site must be established, based upon the type of interest, by:

(i) a survey of the site; the surveyor's metes and bounds property description; and

(ii) a policy of title insurance; or

(iii) a lease sufficient to secure the property for use as a treatment facility for a term approved by the Office.

(2) Property rights must be demonstrated to the satisfaction of the Office which may require a provider's counsel opinion letter certifying that the property interest is of sufficient quality and for the requisite duration and containing citations to supporting documentation upon which the legal opinion was based.

(3) At the discretion of the commissioner, limited state aid may be granted to an applicant who has not secured a property interest in the site, provided the applicant can demonstrate the required title characteristics pursuant to this subdivision.

(b) Application.

(1) A certificate of need application must be submitted as appropriate and determined by the Office.

(2) A completed application must be submitted in the format and on forms prescribed by the commissioner, such application to include at a minimum:

(i) copies of existing contracts and any other materials requested by the Office relating to the acquisition, construction, renovation and operation of the proposed facility;

(ii) assurance that sufficient funds will be available to the applicant to enable the applicant to meet any non-state-aid share of capital costs;

(iii) assurance that sufficient funds will be available when the capital portion of the project is completed for effective use of the facility for the purposes for which the state aid grant has been provided;

(iv) if the applicant is a certified provider or proposed incorporator of a provider, there must be an agreement between the applicant and the local governmental unit pursuant to section article 41 of the Mental Hygiene Law, including LGU certification that the project is consistent with its plan for the provision of services to those suffering from addictive disorders and their families and/or significant others;

(c) Repayment. State aid grants received by an applicant must be repaid if and when the applicant receives a DASNY loan pursuant to section 813.6 of this Part. Such repayment shall be intended only for that portion of a grant represented by underlying costs for which the DASNY loan is made.

(d) Accountability.

(1) Discrete records and accounts shall be maintained to show receipt and disbursement of federal, local or other funds, costs incurred and expenditures paid with regard to said project. OASAS, or its agent, shall have the right to inspect and audit the project records at any time during the project or after its completion.

(2) The Office or its designee shall have the right to inspect the physical site of any facility benefitting from a state aid grant.

(3) The applicant must agree to execute and record any lien on a security interest with respect to real and/or personal property as may be required by the commissioner.

(4) Upon completion of a capital project, if requested, the provider shall submit to the Office, in a form prescribed by the Office, a certified cost statement reconciling all costs incurred, revenues received and expenses paid with regard to the project.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.6 Requirements for a DASNY loan

(a) Eligibility.

(1) Cities, counties and voluntary agencies as applicants for projects estimated to exceed $100,000.00 must apply for a state aid grant or a LOUI with the intent to refinance the state aid grant or private financing by means of a DASNY loan at the conclusion of the project.

(2) Applicants with an Office approved LOUI authorizing private financing of a project approved by the Division of Budget may apply for a DASNY loan for purposes of refinancing at the conclusion of the project. Use of construction management or design/build contracts must receive the prior written approval of the Office and shall contain such terms and conditions as the commissioner shall deem reasonable and necessary.

(3) Upon receipt of an approved project proposal cost (Proposed Project Approval, "PPA") by the Division of Budget, project approval by applicant's board of directors or authorized principal, approval of the state Attorney General and state Comptroller, an OASAS capital contract shall be executed including provisions for long term use of the facility and participation in the DASNY financing program for mental hygiene facilities.

(b) Application. In addition to requirements for a state aid grant pursuant to section 813.5 of this Part, applicants for a DASNY loan shall provide the following:

(1) applicant must be able to demonstrate that at the time of receiving a DASNY loan, it will possess a fee interest or such other estate or interest in the property sufficient to assure undisturbed use of the property for a minimum of thirty (30) years or the term of the DASNY loan, whichever is greater.

(2) The applicant may not transfer, sell, assign, lease or encumber, in whole or in part, real property acquired through a state aid grant, or transfer, sell or assign in whole or in part, the shares of stock of the cooperative corporation, the proprietary lease, leasehold or contractual agreement acquired with a state aid grant without the prior written approval of the Office.

(3) The applicant shall obtain a resolution of its board of directors authorizing the corporation to enter into such agreements as shall be required by DASNY and the Office pursuant to Mental Hygiene Law and the facilities development corporation act.

(c) Recertification. Applicants should initiate a certification process pursuant to Part 810 of this Title if the program is a new facility, is relocating to a new site, or is changing capacity consistent with the approved project plan.

(d) Accountability.

(1) Review and written approval of plans, specifications and cost estimates by the Office is required at each phase of design. Final working drawings and specifications shall conform with all applicable laws, codes, rules and regulations.

(2) Written approval of the Office is required before the recipient of financial support enters into a contract with an architect, engineer, design consultant or any other provider of services related to the capital project as may be required by the Office.

(3) Bid documents must be reviewed by the Office and approved in writing prior to solicitation of bids. Construction contracts shall be bid competitively upon solicitation of no less than three (3) potential bidders. Contracts shall be awarded to the lowest responsible bidder, upon review and approval by the Office.

(4) The recipient of financial support must provide supervision and inspection at the construction site adequate to ensure that the work is completed on time and in accordance with Office approved plans and specifications. Changes to approved plans or documents shall require the Office's written approval.

(e) Allowable costs.

(1) Project costs expended prior to execution of a capital contract or LOUI are not eligible for reimbursement from proceeds of a DASNY loan.

(2) Consistent with an approved capital contract or LOUI, a state aid grant or private financing to be refinanced with a DASNY loan may be used for the following costs:

(i) design, construction, acquisition, reconstruction, rehabilitation or improvement of developed or undeveloped real property for use as an addiction services treatment facility;

(ii) feasibility studies, designs, surveys, plans and specifications;

(iii) engineering and architectural services;

(iv) insurance premiums;

(v) original equipment and furnishings required for the operation of the facility;

(vi) costs and expenses in connection with the issuance of the bonds and notes by DASNY to finance the facility, including interest from the date of such issuance to the loan termination.

(vii) refinancing of the outstanding balance of a taxable interest rate loan, the proceeds of which were used for the purposes described in this paragraph;

(viii) legal fees related to the project and capped at a regional rate determined by the commissioner, excluding fees incurred by the applicant related to litigation between applicant and any service provider, contractor or subcontractor hired by applicant during the course of the project.

(ix) such other costs as the commissioner may determine to be reasonable and necessary.

(f) Agreements.

(1) Upon completion of the project, the facility shall be operated for the purposes for

which it was acquired, constructed or improved, for a term of 30 years secured by a State Aid Grant Lien or other agreement between the Office and the recipient of financial support.

(2) The recipient must enter into a mortgage, loan, security and other such agreement and provide such legal opinions and assurances as required by the commissioner and DASNY with respect to the financing and securing of the property.

(3) The recipient must execute an agreement with the Office whereby the Office will recover on a periodic basis a portion of the provider's annual OASAS reimbursement, which may include interest, fees, costs and charges, until the loan is satisfied.

(4) Recipients may pre-pay loans pursuant to terms of the DASNY loan agreement.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.7 Liens of the Office

(a) Recorded liens. Upon request of the Office, the recipient must file proof of any State Aid Grant Lien, mortgage or other security with the clerk of the county wherein such facility is located and provide OASAS proof of such filing.

(b) Remedial actions. In the event the facility is not utilized for the operation of an addiction services treatment program pursuant to all applications, contracts and agreements required for state aid grants and DASNY loans, in addition to any other legal remedies:

(1) OASAS shall have the right to possession and occupancy, without any charge or fee therefore, during the unexpired period of time during which the facility was to have been operated pursuant to this Part. The possession and occupancy shall be under the following terms and conditions:

(i) If OASAS is obligated to make any payment on any mortgage, lien, judgment or other encumbrance on the facility, then the amount of such payment or payments shall be an obligation of the recipient due and owing to OASAS;

(ii) If OASAS is obliged to make such structural repairs then the amounts so expended shall become and be an obligation of the recipient due and owing to OASAS;

(iii) Notwithstanding any of the provisions contained herein, OASAS shall be entitled to recover an amount equal to five percent (5%) of any state aid granted for capital costs of the facility for each year of the unexpired first twenty (20) years of the term during which the applicant has agreed to operate said facility. The total amount shall become an obligation of the recipient due and owing to OASAS; or

(2) Receipt of fee title to the improved real property or transfer of fee title to another Office approved provider of addiction treatment services.

(1) liens to which OASAS has consented to subordination; and

(2) liens pre-existing the grant of state aid.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.8 Conflict of interest

No full time officer or employee of the applicant or of the State, or of any firm, organization, corporation, or partnership which such officer or employee owns, controls or directs shall receive funds reimbursed for capital costs directly or indirectly for payment for services provided in connection with planning, design, construction, or equipping of the project, or in connection with site acquisition.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.9 Waiver of provision

Upon written request by the applicant, the commissioner may waive any provisions of this Part not otherwise required by law, by giving prior written approval, after full disclosure of all relevant facts and circumstances and a determination by the commissioner that the subject provision imposes an unreasonable burden on the applicant, and that the proposed alternative transaction is necessary for project advancement.

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 813.10 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable

History

Adopted New York State Register May 17, 2017/Volume XXXIX, Issue 20, eff. 5/17/2017

Part 814 General Facility Requirements

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.1 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the Office of Alcoholism and Substance Abuse Services (OASAS) to adopt standards including necessary rules and regulations pertaining to chemical dependence services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 19.21 (b) of the Mental Hygiene Law requires the commissioner to establish and enforce certification. inspection, licensing and treatment standards for alcoholism. substance abuse, and chemical dependence facilities.

(d) Sections 32.01 and 32.07 (a) of the Mental Hygiene Law authorizes 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.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.2 Definitions

(a) "Residential" means services provided by programs certified pursuant to Parts 817, 819 or 820 of this Title.

(b) "Supportive living" means free standing units certified pursuant to Part 819 and are equivalent to Part 820 residential services in a scatter-site setting.

(d) "Facility certification" means a certification issued by the Office constituting an approved facility following inspection pursuant to this Part.

(e) "Self-preserving" means a person is able to leave a building without assistance from another in the event of a fire emergency.

(f) "Fire alarm system" shall mean hard-wired systems or free standing devices inclusive of, but not be limited to, smoke and heat detectors, sprinklers, kitchen fire suppression installations, extinguishers, visual and auditory warning devices.

(g) "Ancillary space" means spaces for living, dining, social and counseling activities.

(h) "Outpatient" shall mean services provided by programs certified pursuant to Parts 822, 823, or 825 of this Title.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.3 Building codes

(a) All programs and facilities shall adhere to applicable building codes as appropriate. OASAS may refer any suspected violation to an authority with appropriate jurisdiction. Applicable building codes include, but are not limited to:

(1) Title 19 NYCRR, Chapter XXXIII, subchapter A, comprising the State Uniform Fire Prevention and Building Code (Building Code of New York State);

(2) Title 10 NYCRR Subpart 14-1, comprising the New York State Sanitary Code regarding food service establishments; and

(3) New York City Administrative Code, Title 27, Chapter I comprising the Building Code of the City of New York which shall apply exclusively for all facilities located in any of the five boroughs of the City of New York; and

(4) the Building Code of New York State applicable in all municipalities of the state outside of the five boroughs of the City of New York;

(5) any and all applicable local and state occupancy, use, building and zoning laws.

(b) If there is a conflict between the applicable codes, rules, or regulations, then the most restrictive standard shall apply under the authority having appropriate jurisdiction.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.4 Requirements for all facilities

(a) Repair and maintenance requirements. All facilities shall be maintained at all times in a state of repair which protects the health and safety of all occupants. The provision of maintenance shall be the responsibility of the governing authority of the provider of services. All facilities shall develop, maintain and follow a plan for maintenance that conforms to all applicable laws and ordinances which mandate safety, fire, health and sanitation requirements. All facilities shall be maintained in a clean and sanitary manner.

(b) Safety and fire precaution requirements.

(1) Fire drills shall be conducted at least quarterly for each shift. All such drills shall be held at times when the building is occupied.

(i) A written record shall be maintained indicating the time and date of each fire drill, the number of participants at each drill and the length of time for each evacuation. Such written record shall be provided to the Office upon request;

(ii) Fire regulations and evacuation routes shall be posted in bold print on contrasting backgrounds and in conspicuous locations. Each diagram shall display primary and secondary means of egress from the posted location.

(iii) Programs certified by OASAS and co-located in a general hospital, as defined by Article 28 of the Public Health Law, may follow a fire drill schedule established and conducted by the hospital.

(2) There must be at least one communication device on each floor of each building identified for emergency use.

(3) Documentation evidencing the annual training of all employees in the classification and proper use of fire extinguishers and the means of rapid evacuation of the building must be maintained on site for review upon request.

(4) Annual inspections and testing of the required fire alarm system, including battery operated smoke detectors, fire extinguishers, emergency lighting systems, illuminated exit signs, environmental controls, and heating and cooling systems shall be conducted. The maintenance and testing of hard wired (permanently installed) fire alarm systems, fire extinguishers, and heating systems must be conducted by a certified vendor. Documentation of all such inspections and testing must be maintained on site for review upon request.

(c) General building requirements. All facilities are required to comply with the following; supportive living facilities and residential reintegration services in a scatter-site setting are exempt from the provisions of paragraphs (1) through (6) below:

(1) Spaces where counseling occurs must afford privacy for both staff and patients.

(2) Bedroom and bathroom facilities must be made available to afford privacy for males and females.

(3) A designated area must be made available for the locked storage and maintenance of patient records. Location, design and equipment must be appropriate to secure records from traffic, theft and unauthorized access as well as environmental damage. Patient records must be retained for six years after the date of discharge or last contact, or three years after the patient reaches the age of eighteen, whichever time period is longer.

(4) A designated support area must be made available in conjunction with living units for housekeeping and janitorial staff, supplies and equipment.

(5) Offices or work areas must be made available to facilitate effective supervision and monitoring of patients.

(6) An area for the proper storage, preparation and use or dispensing of medications medical supplies and first aid equipment must be made available. Storage of all medications must be provided for in accordance with the requirements set forth in Title 21 of the Code of' Federal Regulations, Part 1301 regarding security requirements for controlled substances and Title 10 NYCRR, Part 80 regarding institutional dispensers of controlled substances. Syringes and needles must be properly and securely stored.

(7) All beds must be furnished with a clean and functional mattress;

(8) Sleeping areas that contain more than one bed must provide a minimum of 60 square feet per occupant. Rooms that have two or more beds in use on or before June 3, 2002, will be permitted to continue with not less than 40 square feet per occupant until a major relocation or major renovation of OASAS certified treatment space occurs, or there is a change in the type or capacity of service certified at the present location;

(9) Ancillary space of 60 square feet per occupant must be provided. Services commencing before June 3, 2002 will be permitted to continue with not less than 40 square feet per occupant until a major relocation or major renovation to OASAS certified treatment space occurs, or there is a change in the type or capacity of service certified at the present location.

(d) Facilities where clients are not served by an OASAS certified provider or constitute an administrative site only will not be subject to routine facilities inspections.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.5 Facility certification

(a) After the facility is inspected and found to be in compliance, such facility will be issued a facility certification that will remain valid until changes in the character or use of the existing facility are made, or at the conclusion of a recertification review. In addition to provisions of section 814.3 of this Part, facility certification will include verification of the following subdivisions:

(b) Floor plans. Current and accurate facility floor plans which include the following information shall be maintained on site and provided to OASAS upon request:

(1) room locations and dimensions;

(2) room functions;

(3) fire/evacuation routes;

(4) smoke and/or heat detector systems;

(5) fire alarm pull box locations;

(6) fire extinguisher locations;

(7) emergency light locations;

(8) location of fire hose/standpipe systems; and

(9) sanitary facilities, including:

(i) the number of sinks, showers/tubs and toilets per room;

(ii) the intended use of the facilities by the patients, staff, men, and women; and

(iii) location of handicapped accessible fixtures and accessories.

(c) Medical space. Certified programs providing on-site medical examinations (others as needed), must have an area designed for the conduct of on-site medical examinations which at a minimum:

(1) is private;

(2) is equipped and furnished sutiable for required examinations;

(3) is equipped with a hand wash sink with hot and cold water supply;

(4) has the capacity to store and properly dispose of medical waste;

(5) is consistent with a written policy and procedure for such storage.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.6 Additional facility certification requirements for all inpatient and residential facilities

(a) The following additional requirements are applicable to sleeping and living spaces in all inpatient and residential facilities:

(1) Sleeping accommodations:

(i) Sleeping areas that contain one bed must provide a minimum of 80 square feet per occupant.

(ii) Sleeping areas that contain more than one bed must provide a minimum of 60 square feet per occupant. Rooms that have two or more beds in use on or before June 3, 2002, will be permitted to continue with not less than 40 square feet per occupant until a major relocation or major renovation of OASAS certified treatment space occurs, or there is a change in the type or capacity of service certified at the present location.

(iii) In cases where there is dormitory type use, the maximum capacity shall be 24 residents.

(iv) Bunk beds shall not be allowed in facilities providing chemical dependence inpatient withdrawal and stabilization services, chemical dependence inpatient rehabilitation services, or residential stabilization elements.

(v) Nursing stations, where applicable, must be located in close proximity to sleeping areas.

(vi) Closets or wardrobes must be provided in all occupied bedrooms for each individual's clothing and personal property.

(2) Spaces for living, dining, social and counseling activities:

(i) Ancillary space of 60 square feet per occupant must be provided. Services commencing before June 3, 2002 will be permitted to continue with not less than 40 square feet per occupant until a major relocation or major renovation to OASAS certified treatment space occurs, or there is a change in the type or capacity of service certified at the present location.

(ii) Separate storage areas for clean linen and laundry and for soiled linen and laundry must be made available.

(iii) Sanitary facilities must be provided and must consist of, at a minimum, one toilet, one sink and one tub or shower for each ten beds.

(b) Clients admitted into a residential program must have the capability of self-preservation. If the client is not capable of self preservation they should be referred to a Part 816.6 Medically Managed Withdrawal & Stabilization Services or other program equipped for the appropriate level of care.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.7 Additional facility certification requirements for supportive living facilities or residential reintegration in a scatter-site setting

(a) The following additional requirements are applicable to all supportive living facilities or residential reintegration in a scatter-site setting:

(1) The maximum number of unrelated occupants must comply with the applicable building codes, local laws and zoning ordinances.

(2) All cooking and sleeping areas shall be monitored by functioning smoke detectors or a certified fire detection system; all cooking areas must also be equipped with functioning fire extinguishers.

(3) Each living unit must have an area for sleeping, eating, living, and cooking, and a bathroom consisting of, at a minimum, a toilet, a sink, and a shower and/or tub.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.8 Additional facility certification requirements for all outpatient facilities

(a) The following additional requirements are applicable to all outpatient facilities:

(1) A waiting area. appropriate to the type of certified service. that is sized and furnished for the comfort, convenience, and confidentiality of persons waiting for services, and that may be supervised to control access to the facility, prevent entry by unauthorized persons, and ensure confidentiality pursuant to federal law;

(2) Space for provision of individual and group treatment appropriate to the type of certified service.

(3) Space for provision of medical services appropriate to the type of certified service.

History

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.9 Shared facilities and integrated outpatient services

(a) Providers sharing space with any other corporate entity must develop a written space use policy or plan in co-operation with such entity to ensure compliance with Federal and State laws applicable to alcohol and drug abuse patients.

(b) Space use policies or plans must describe strategies to protect patient confidentiality including, but not limited to, the following:

(1) configuration of common waiting rooms;

(2) ingress and egress;

(3) verbal or visual identification of patients;

(4) maintenance and/or sharing of records;

(5) dual purpose use of same space;

(6) identification and/or limitation of meeting spaces for confidential meetings; and

(7) control of treatment area during treatment hours;

(8) compliance with the provisions of Part 825 Integrated Outpatient Services, as applicable.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 814.10 Space alterations

A governing authority proposing alterations to its physical space utilized for chemical dependence services, including requests for additional space, changes in space designations and/or other alterations, must obtain prior written approval from OASAS no less than 60 days before implementing the change.

History

Adopted New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff. 7/27/2016

Part 815 Patient Rights

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.1 Background and intent

This Part sets forth minimum standards to protect patient rights. For purposes of this Part, a patient is a person receiving services from a provider certified, funded or otherwise authorized by the Office. The term "patient" as used in this Part includes, but is not limited to, terms such as "client", "resident", "consumer", "customer", "participant" or such other term which applies to a current or former service recipient. All services shall be provided in a manner that is strength-based, person centered and trauma informed.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.2 Legal base

(a) Section 19.07 (c) of the Mental Hygiene Law ("MHL") charges the Commissioner with the responsibility of ensuring that the personal and civil rights of persons receiving care, treatment and rehabilitation are adequately protected.

(b) Section 19.07(e) of the MHL authorizes the Commissioner to adopt standards including necessary rules and regulations pertaining to addiction services.

(c) Section 19.09(b) of the MHL authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under their jurisdiction.

(d) Section 19.20 of the MHL authorizes the Office to receive and review criminal history information from the Justice Center related to employees or volunteers of treatment facilities certified, licensed, funded or operated by the Office.

(e) Section 19.20-a of the MHL authorizes the Office to receive and review criminal history information from the Justice Center related to persons seeking to be credentialed by the Office or applicants for an operating certificate issued by the Office.

(f) Section 19.21(b) of the MHL authorizes the Commissioner to adopt regulations concerning the licensing, certification, inspection, and treatment standards of all facilities that provide addiction services.

(g) Section 22.03 of the MHL requires the director of any addiction services program to establish, communicate and post patient rights, to include information about how to communicate with the Office and the Commissioner.

(h) Section 22.07(c) of the MHL authorizes the Commissioner to adopt rules and regulations and take any other necessary action to ensure that the rights of individuals who have received or are receiving addiction services are protected.

(i) Section 32.01 of the MHL authorizes 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 MHL.

(j) Section 32.07(a) of the MHL authorizes the Commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the MHL.

(k) Section 32.05 of the MHL indicates that no provider of services shall engage in the provision of addiction services without an operating certificate issued by the Commissioner.

(l) Section 492 of the Social Services Law established the Vulnerable Persons' Central Register.

(m) The Protection of People with Special Needs Act (chapter 501 of the Laws of 2012) established the Justice Center for the Protection of People with Special Needs.

(n) Section 32.06 of the MHL prohibits the offering or acceptance of a payment, benefit or consideration in any form, in exchange for the referral of any person as a potential patient for substance use disorder services.

(o) Article 15 of the Executive Law enacts the Human Rights Law prohibiting discrimination against protected classes of New Yorkers including on the basis of sexual orientation and gender identity or expression.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.3 Applicability

This Part applies to any provider currently certified, funded or otherwise authorized by OASAS to provide addiction services.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.4 Provider requirements

(a) The facility or provider agency as program governing authority shall establish policies and procedures to protect patient rights. Such policies and procedures shall be consistent with the requirements of the program's operating certificate, including, but not limited to:

(1) standards governing staff conduct to ensure the protection of patient rights and to ensure the communication of such standards, rights and responsibilities to patients. When communicating, providers shall make every effort to accommodate patient differences in language and language abilities in accordance with applicable law.

(2) Copies of a statement of the rights and responsibilities of patients shall be posted prominently and conspicuously throughout the provider's facility. This statement, at a minimum, shall include the requirements of sections 815.5 and 815.6 of this Part. Such postings shall also include contact information for the toll-free hotline to the Vulnerable Persons' Central Register, the provider's director, the Commissioner, the Office patient advocate, and the Office toll-free telephone number.

(3) The postings shall include the policy and procedures for addressing patient concerns or grievances with the provider and/or the Office. Such policy shall include, at a minimum, the following rights:

(i) to question a policy, voice a concern or grievance with the provider or the Office;

(ii) to receive a timely response and/or resolution;

(iii) to not suffer adverse consequences or retaliation as a result; and

(iv) to communicate with the provider's director, medical director, board of directors, other responsible staff and the Commissioner.

(4) A copy of this Part, and any other Part of Title 14 that is applicable to the provider, shall be provided to a patient upon request.

(5) The provider shall develop policies and procedures to help patients follow their treatment/recovery plan. Such policies and procedures shall specify standards and expectations for patient conduct, including conduct that may result in discharge, achievement of goals consistent with the plan, and procedures for reevaluating and revising the treatment plan when goals are not met.

(6) Provider policies and procedures shall, at a minimum, address patient conduct with timely incremental interventions that are strength-based, person-centered and trauma-informed and designed to assist patients in responding positively to treatment. Such incremental interventions shall be incorporated and delivered consistent with the patient's treatment/recovery plan; be time-limited, and documented in the patient's record. When a patient poses an imminent threat to others, immediate discharge may be warranted consistent with other provisions of this Part.

(7) The provider shall establish a policy and procedure for implementing quality improvements with respect to patient concerns and complaints, changes in regulatory requirements, or other factors, and shall review such policies no less frequently than once every two years. Documentation shall be kept of all such reviews.

(b) Upon admission, each patient shall be given a written copy of provider services, including onsite and referral service, and the policy relating to the rights and responsibilities of the patient and the provider, and other provider rules and requirements. The patient shall acknowledge in writing the provision and understanding of these documents, and such attestation shall be kept in the patient's record. Patients shall be informed that if they wish to express a concern or grievance, they will be provided documents to initiate such grievance and resolution process upon request.

(c) The provider shall make every effort to accommodate patient differences in language and language abilities and ensure effective communication in accordance with applicable law.

(d) A patient's rights as a citizen of the United States or as a resident of the State of New York shall not be forfeited or abridged because of such patient's participation in addiction services as defined in Part 800 of this Title.

(e) The provider shall comply with the federal confidentiality regulations at 42 Code of Federal Regulations (CFR) Part 2, the Health Insurance Portability and Accountability Act ("HIPAA"), the Public Health Law, and all other applicable law. At the time of admission, the provider shall inform each patient that federal and state law protects the confidentiality of all records of identity, diagnosis, prognosis, or treatment in connection with a person's attendance, participation, or receipt of addiction services. Such information shall be released only in accordance with applicable provisions of federal and state law.

(f) The provider shall establish a policy and procedure for patient discharge pursuant to section 815.7 of this Part. Discharge decisions and appeal results shall be recorded, reviewed and incorporated into the provider's quality review and improvement process.

(g) Participation in addiction services is voluntary and no provider shall force or coerce any person to enter or remain in any service. All patients shall be informed prior to admission that their participation is voluntary and that they are entitled to terminate their participation at any time. Providers may make mutual help or support-group services available to patients but shall not compel attendance. A patient's inability to complete treatment required by a judicial or child welfare mandate may have legal consequences to the patient under the terms of such mandate but, nevertheless, treatment remains voluntary.

(h) The delivery and receipt of emergency substance use disorder services for incapacitated persons shall be governed by Mental Hygiene Law section 22.09.

(i) When admitting a patient to a facility or provider agency, the provider shall not add admission criteria not required by regulation, including, but not limited to, residency, specific identification requirements and/or citizenship status. Applicants not admitted to the program shall be given information concerning other service providers which can more appropriately meet the needs of the patient and, if clinically necessary, a referral and connection shall be made on the patient's behalf.

(j) Office funded service providers must use a sliding scale when evaluating a self-pay patient that considers the patient's ability to pay. Admission to an Office funded provider agency may not be conditioned upon a patient's ability or inability to pay.

(k) Providers shall adhere strictly to the Confidentiality requirements of 42 CFR Part 2, and shall make each release form signed by a patient as specific as possible so as to ensure that clients are fully aware of who is receiving the information. Additionally, providers shall have a policy that ensures an end date to all release of confidential information forms. Copies of records shall be given to a patient or former patient upon request, in accordance with applicable law, regulations, and the program's procedures, within fifteen (15) calendar days of a request.

(l) The provider shall admit and treat minors in accordance with the requirements of Mental Hygiene Law section 22.11.

(m) The provider shall establish guidelines to ensure that patients at inpatient and residential facilities may correspond, have reasonable access to telephones, and have regularly scheduled opportunities to meet with visitors consistent with treatment needs. Patient correspondence addressed to, or from, the Office, public officials, attorneys, and clergy shall be unrestricted and shall be forwarded promptly without being opened or read by provider staff.

(n) The provider director or their designee may take temporary custody of a patient's personal property with the patient's written permission. Personal property retained by the provider shall, at the patient's direction, be returned to the patient when the patient leaves the service, sent to an address designated by the patient at the patient's expense, or donated to the provider. All property left by a patient will be disposed of as abandoned property within thirty (30) days, or in accordance with applicable law. Any interest on money received and held for a patient shall be the property of the individual patient and shall not accrue for the benefit of the provider or for the general welfare of all patients in a facility. A provider who serves as a representative payee for a patient pursuant to designation by a governmental entity or assumes management responsibility over the funds of a patient shall maintain such funds in a fiduciary capacity to the patient.

(o) The provider may submit reports or information to criminal justice entities regarding any patient only after receiving a request and executing a proper consent. Such reports shall be limited to only treatment or clinical information about the patient that is sufficient to satisfy the request, consistent with applicable law, and shall not contain any recommendation or suggestion of any legal action or consequence, such as: court intervention; remand; custody; violation; or incarceration.

(p) Providers shall not offer or accept payment, benefit, or other consideration in any form, in exchange for the referral of any person as a potential patient for substance use disorder service s and shall not advertise, or otherwise solicit patients, in false, deceptive or misleading ways.

(q) Providers shall develop and implement policies and procedures consistent with the requirements for hiring and training all custodians, as such term is defined in Part 836 of this Title. Such procedures shall include, but not be limited to, receipt of signed attestations that such custodian has been notified of, and understands, their obligations pursuant to chapter 501 of the Laws of 2012 and Justice Center regulations and that such custodian shall abide by the Code of Conduct for custodians as established by the Justice Center for the Protection of People with Special Needs; and provider's obligation to cooperate with any investigation of a custodian regarding a reportable or significant incident by the Justice Center as an agent of the Office.

(r) Providers shall develop and implement policies and procedures to ensure the provision of culturally appropriate and affirming services for patients, including but not limited to, sexual orientation and gender identity or expression.

(s) Providers shall develop and implement policies and procedures to ensure access to approved medications for substance use disorder treatment as follows and in accordance with guidance issued by the Office:

(1) Medication for Addiction Treatment (MAT) for Substance Use Disorder:

(i) Providers shall maintain a patient with substance use disorder on approved medication, including those federal Food and Drug Administration (FDA) approved medications to treat substance use disorder, if deemed clinically appropriate and in collaboration with the patient's existing provider, and with the patient's consent, in accordance with federal and state rules and guidance issued by the Office. Such contact with the existing program or practitioner prescribing such medications shall be documented in the patient record.

(ii) To facilitate access to full opioid agonist medication for patients who are maintained on such medication at the time of admission or who choose to start such medication during admission, providers shall develop a formal agreement with at least one Opioid Treatment Program (OTP) certified by the Office to facilitate patient access to full opioid agonist medication, if clinically appropriate. Such agreements shall address the program and the OTPs responsibilities to facilitate patient access to such medication in accordance with guidance issued by the Office.

(iii) Providers shall provide FDA approved medications to treat substance use disorder to an existing patient or prospective patient seeking admission to an Office certified program in accordance with all federal and state rules and guidance issued by the Office.

(iv) Providers shall provide education to an existing patient or prospective patient with substance use disorder about FDA approved medications for the treatment of substance use disorder if the patient is not already taking such medications, including the benefits and risks. The program shall document such discussion and the outcome of such discussion, including a patient's preference for or refusal of medication, in the patients record.

(v) Providers shall ensure that the patient's discharge plan includes an appointment with a treatment provider or program that can continue the medication post-discharge.

(2) Overdose Prevention Education.

(i) Providers shall offer overdose prevention education and naloxone education and training to a patient, prospective patient, and/or their significant other(s), in accordance with guidance issued by the Office.

(ii) Providers shall offer a naloxone kit or prescription to patients, prospective patients, and/or their significant other(s), in accordance with guidance issued by the Office.

(t) Providers shall document all formal agreements with Opioid Treatment Programs to facilitate patient access to opioid full agonist medication, where appropriate, and consistent with state and federal rules and guidance issued by the Office.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.5 Patient rights

(a) Each patient has the following rights:

(1) to receive services responsive to individual needs in accordance with an individualized treatment/recovery plan, which the patient helps develop and periodically update;

(2) to receive services from provider staff who are competent, respectful of patient dignity and personal integrity, and in sufficient numbers to deliver needed services consistent with the requirements of the provider's operating certificate;

(3) to receive services in a therapeutic environment that is safe, sanitary, and free from the presence of addictive substances;

(4) to know the name, position, and function of any person providing treatment to the patient, and to communicate with the provider director, medical director, board of directors, other responsible staff or the Commissioner;

(5) to receive information concerning treatment, such as diagnosis, condition or prognosis in understandable terms, and to receive services requiring a medical order only after such order is executed by a medical provider working within their scope of practice;

(6) to receive information about provider services available on site or through referral, and how to access such services;

(7) to receive a prompt and reasonable response to requests for provider services, or a stated future time to receive such services in accordance with an individual treatment/recovery plan;

(8) to be informed of and to understand the standards that apply to their conduct, to receive timely warnings for conduct that could lead to discharge and to receive incremental interventions that are strengthbased, person centered and trauma-informed for conduct contrary to program rules;

(9) to receive in writing the reasons for a recommendation of discharge and to be informed of the process to appeal such discharge recommendation;

(10) to voice a grievance, file a complaint, or recommend a change in procedure or service to provider staff and/or the Office, free from intimidation, reprisal or threat;

(11) to examine, obtain a receipt, and receive an explanation of provider bills, charges, and payments, regardless of payment source;

(12) to receive a copy of the patient's records for a reasonable fee;

(13) to be free from physical, verbal or psychological abuse;

(14) to be treated by provider staff who are not under the influence of substances that would impair their ability to perform the duties stated in their job description;

(15) to be free from any staff or patient coercion, undue influence, intimate relationships and personal financial transactions;

(16) to be free from performing labor or personal services solely for provider or staff benefit, that are not consistent with treatment goals, and to receive compensation for any labor or employment services in accordance with applicable state and federal law; and

(17) the following rights apply to patients who reside in an inpatient/residential setting:

(i) to practice religion in a reasonable manner not inconsistent with treatment/recovery plans or goals and/or have access to spiritual counseling if available;

(ii) to communicate with outside persons in accordance with the individualized treatment/recovery plan;

(iii) to communicate freely with the Office, public officials, clergy, attorneys and other persons identified by the patient;

(iv) to receive visitors at reasonable times in relative privacy in accordance with the individualized treatment/recovery plan;

(v) to be free from restraint or seclusion;

(vi) to have a reasonable degree of privacy in living quarters and a reasonable amount of safe personal storage space;

(vii) to retain ownership of personal belongings, to the extent such belongings are not contrary to program rules; and

(viii) to have a balanced and nutritious diet.

(18) participants referred to a faith-based provider have the right to be given a referral to a non-faith based provider.

(19) Patients have the right to placement in gender segregated settings based on their gender identity or expression.

(20) Patients have the right to culturally appropriate and affirming care and to be free from harassment and/or discrimination in accordance with the factors outlined in paragraph (21) of this subdivision.

(21) Prohibition against discrimination in admission. No individual that meets level of care criteria for admission shall be denied admission to any program based solely on the following factors, including but not limited to:

(i) prior treatment history;

(ii) referral source;

(iii) pregnancy;

(iv) history of contact with the criminal justice system;

(v) HIV status;

(vi) physical or mental disability;

(vii) lack of cooperation by significant others in the treatment process;

(viii) toxicology test results;

(ix) use of any substance, including but not limited to, benzodiazepines; or

(x) use of medications for substance use disorder prescribed and monitored by an appropriate practitioner;

(xi) actual or perceived gender or gender identity;

(xii) national origin;

(xiii) race or ethnicity;

(xiv) actual or perceived sexual orientation;

(xv) marital status;

(xvi) military status;

(xvii) familial status; or

(xviii) religion; or

(xix) age.

(22) Patients have the following rights with regard to access to medication for addiction treatment:

(1) Medication for Addiction Treatment (MAT) for Substance Use Disorder.

(i) Patients have the right to be offered or maintained on all forms of approved medication for substance use disorder treatment when admitted or seeking admission to any Office certified program, in accordance with guidance issued by the Office.

(ii) Patients have the right to be educated about all forms of FDA approved medications for the treatment of substance use disorders, including the benefits, risks and alternatives.

(23) Overdose Prevention Education.

(i) Patients have the right to receive overdose prevention education and naloxone education and training, and a naloxone kit or prescription, in accordance with guidance issued by the Office.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.6 Patient responsibilities

(a) Participation in treatment for an addiction disorder presumes a patient's continuing desire to acquire healthy habits and requires each patient to act responsibly and cooperatively with provider staff, in accordance with an individual treatment/recovery plan and reasonable provider procedures. Therefore, each patient is expected to:

(1) work toward the goal of recovery, as defined by the patient;

(2) treat staff and other patients with courtesy and respect;

(3) respect other patients' right to confidentiality;

(4) participate in developing and following a treatment/recovery plan;

(5) become involved in productive activities according to ability;

(6) pay for services on a timely basis according to financial means;

(7) participate in individual counseling and/or group and/or family counseling sessions as appropriate;

(8) inform medical staff if receiving other medical or psychiatric services;

(9) address all personal issues adversely affecting treatment; and

(10) act responsibly and observe all provider rules, regulations and policies.

(b) Addressing patient non-adherence.

(1) Provider policies and procedures to address patient nonadherence shall be strength-based, person-centered, trauma-informed and designed to support a patient's positive response to treatment. Such policies and procedures must specify standards and expectations for patient conduct, and any consequences of non-adherence, including conduct which may result in treatment termination.

(2) Providers shall address patient non- adherence with timely and appropriate incremental interventions that are strength-based, person centered, trauma-informed, and designed to assist patients in responding positively to treatment. Such incremental interventions shall be incorporated in the patient's treatment/recovery plan, be time-limited, and be documented in the patient's record.

(3) No treatment intervention or action can include delay or denial of any clinical, medical, or other required services vital to the health or recovery of the patient.

(4) Providers shall first warn patients of any conduct that could result in a recommendation of discharge with continued non- adherence, and must document such warning(s) in the patient's record.

(5) Patients have the ability to consent or refuse treatment recommendations from the program. Providers may not discharge a patient solely for their refusal to participate in a recommended service.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.7 Procedure at discharge

(a) The director of a facility or service provider shall be responsible for any recommendation to discharge a patient against the patient's wishes. The director or their designee shall implement such recommendations only after the director:

(1) reviews the recommendation to discharge to ensure that the reason(s) is fair, not arbitrary or capricious, and is serious enough to warrant discharge;

(2) reviews and evaluates the patient's total response to treatment, in light of the recommendation to discharge;

(3) confers with staff at a multidisciplinary meeting to discuss the patient's response to treatment and the recommendation to discharge;

(4) confirms that, within reasonable clinical judgment, all incremental strength-based and trauma-informed interventions have been tried but without success, including consideration of transfer to another provider;

(5) provides a written notice to the patient that indicates the reason(s) for the recommended discharge as well as required information on how to appeal;

(6) if the patient appeals, meets with the patient to conduct the appeal no sooner than twenty-four (24) hours after provision of the notice, to allow the patient time to seek the advice of others, if desired, and discusses with the patient the reasons to implement or rescind the recommendation to discharge; and

(7) informs the patient in writing of the decision to implement or rescind the recommendation to discharge no later than seventy-two (72) hours after the appeal is made;

(i) if discharge is decided after the appeal, assures that the patient receives information about treatment and referral options, and connections to such referrals if desired;

(ii) if rescission of the discharge is decided after the appeal, assure the patient full opportunity to continue treatment.

(b) For providers of opioid full agonist medications, no dose taper shall begin until after completion of the aforesaid process and all efforts to transfer the patient to another provider of opioid full agonist medications have been exhausted.

(c) For inpatient and residential providers, no patient shall be forced to leave the program until after completion of the aforesaid process. No patient shall be forced to leave the program between 6:00 P.M. and 8:00 A.M. unless appropriate arrangements have been made. Safe and appropriate transportation, travel arrangements, and travel costs shall be provided or arranged as needed.

(d) The patient, and their family/significant other(s) shall be offered overdose prevention education, naloxone education and training and a naloxone kit or prescription.

(e) None of the foregoing shall apply to an emergency discharge where the patient is determined reasonably to be a danger to others. A provider may make an emergency discharge immediately upon making such a determination, subject to the patient's right to appeal after the patient is discharged.

(f) A discharge pursuant to a patient's refusal to consent to a proper request to screen in accordance with section 815.10 of this Part may be made immediately upon the refusal but incremental strength-based and trauma informed interventions should be employed before a patient is discharged for the refusal, subject to the patient's right to appeal after the patient is discharged.

(g) All of the foregoing must be documented in the patient's record.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.8 Toxicology testing

(a) The provider may administer toxicology tests to a patient to ascertain the use and/or presence of alcohol and/or other substances, in accordance with program policies for screening, applicable regulations, clinical judgment, guidance issued by the Office and mindful of patient dignity. The provider shall inform a patient of each result and document all results in the patient's record. Supervised collection of a urine toxicology screen may only be conducted by persons of the same gender, or gender identity, as the patient, based on patient preference. Toxicology testing may not be used by a provider as a punitive tool.

(b) The provider must conduct such tests with reliable testing devices and administer such tests in accordance with manufacturer instructions and in compliance with all Department of Health requirements.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.9 Patient use of prescription medicine

(a) Patients have the right to use lawfully prescribed and properly monitored medication, including controlled substances, from a duly-authorized medical practitioner(s). For all such patients:

(1) The provider shall document the medication name, purpose, and administration frequency as well as the prescribing practitioner's name, phone number and, if applicable, affiliation;

(2) The provider shall seek to obtain a proper consent from the patient, in accord with 42 CFR Part 2, so that the provider practitioner may consult with the prescribing practitioner and discuss:

(i) the patient's medical condition(s);

(ii) the prescribed medication(s), and available alternatives;

(iii) the best plan of services to be rendered by each practitioner, given the patient's concurrent treatment.

(3) If the patient refuses to consent or if the practitioners cannot agree on concurrent treatment, the provider practitioner shall discuss with the patient the possible risks of continued concurrent treatment. If refusal to consent continues or if the patient opts to continue taking the prescribed medicine in light of the explained possible risks, the provider may consider a recommendation for referral and connection to a more appropriate program.

(b) Inpatient and residential providers shall develop policies and procedures governing the handling and storage of patients' medications, including controlled substances, in accordance with applicable law, regulations and guidance issued by the Office. For such providers to take custody of such medicines lawfully, the provider must register with the New York State Department of Health as an Institutional Dispenser in accordance with the requirements of 10 NYCRR Part 80 and follow all applicable rules relating to storage of such medication.

(c) The provider shall not offer or withhold medical or pharmacological services, including prescribed medicines, for any reason other than medical necessity. The provider shall not delay, postpone, or withhold any prescribed medicine for a patient's non-adherence with a program rule, policy, or procedure. Only duly-authorized medical staff may deliver medical services and/or administer prescribed medicines.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.10 Patient screening

(a) The purpose of screening is to ensure a safe and therapeutic environment for all patients. However, patients shall be free from screening except as authorized pursuant to this section.

(b) Subject to the following requirements, a provider may choose to screen patients by establishing written policies and procedures provided to each patient at admission. Such policies may include the following:

(1) Routine screens of patients at admission or when returning to the service are permitted. Routine screening does not involve any physical contact between patient and staff; it does not involve having the patient remove all clothing; and the patient must consent to routine screening by the program.

(2) Screening of a patient's room or a patient's belongings may be conducted at any time with reasonable cause; consent for room screening may be requested by a program and granted upon admission.

(c) When a provider suspects that a patient may have items that may create an unsafe environment in the program, in lieu of a search that requires the patient to remove all clothing, or a body cavity search which is not permissible under any circumstances, providers should arrange for and develop alternative policies in accordance with guidance issued by the Office.

(d) If a patient refuses to consent to program identified alternatives to a body cavity search, they may be discharged in accordance with this Part.

(e) All items that may create an unsafe environment in the program must be disposed of in accordance with the applicable law including but not limited to 10 NYCRR Part 80.51, and 21 CFR Part 1307.21.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.11 Research subjects

(a) A person may participate only in research which does not conflict with their individual treatment / recovery plan. Participation as a "subject at risk" in any research project or activity shall not deprive any patient of the rights, privileges, and protections provided to all patients by this Part. "Subject at risk" means any individual who may be exposed to the possibility of injury, including physical, psychological or social injury, as a consequence of participation as a subject in any research, development or related activity which departs from the application of those established and accepted methods necessary to meet their needs or which increases the risks of daily life. The research project or activity must be approved by an independent institutional review board and the approval kept on file.

(b) Participation in any research project or activity and informed written consent.

(1) The informed written consent of a patient who participates as a subject at risk in any human subjects' research project shall be obtained in accordance with 45 Code of Federal Regulations Part 46.

(2) Prior to seeking consent required above, approval of any research placing human subjects at risk must be secured in accordance with 45 Code of Federal Regulations Part 46.

(3) Research projects which involve placing patients admitted to or enrolled in an addiction service at risk must be reported to the Office prior to initiation of the project.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.12 Staff and client relationships

(a) Sexual contact prohibited. All sexual contact between OASAS program staff and a client is sexual abuse.

(b) Sexual contact includes inappropriate touching, indecent exposure, sexual assault, taking or distributing sexually explicit pictures, voyeurism or other sexual exploitation.

(c) A client is incapable of consenting to sexual contact if they are admitted to a program funded, certified or otherwise authorized by the Office.

(d) All staff shall be trained, upon hire and annually thereafter, on, and be provided with supervision about, maintaining appropriate boundaries with clients.

History

Adopted New York State Register September 9, 2015/Volume XXXVII, Issue 36, eff. 9/9/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 815.13 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provision or applications of this Part which can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register April 10, 2019/Volume XLI, Issue 15, eff. 4/10/2019

Part 816 SUBSTANCE USE DISORDER WITHDRAWAL AND STABILIZATION SERVICES

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.1 Background and intent

(a) These regulations set forth minimum standards for the provision of withdrawal and stabilization services for persons suffering from acute or crisis stages of substance use disorder.

(b) The primary function of a withdrawal and stabilization service is the medical management and treatment of acute withdrawal, resulting in a referral to an appropriate level of care. Certified providers of withdrawal and stabilization services may provide one or more of the following services as further defined in this Part:

(1) medically managed withdrawal and stabilization services;

(2) medically supervised inpatient withdrawal and stabilization services; and/or

(3) medically supervised outpatient withdrawal and stabilization services.

(c) Withdrawal and stabilization services can be the first step in the recovery process and must be provided in an atmosphere which protects the patient's dignity. Therefore, it is expected that providers of withdrawal and stabilization services will establish meaningful linkages for supporting services, including appointments for admission, linkages to supportive services and those services identified by use of an Office designated level of care determination tool for the appropriate level of care. All services shall be provided in a manner that is person centered, strength based and trauma informed.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.2 Legal base

(a) Section 19.09 of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under their jurisdiction.

(b) Section 19.15 of the Mental Hygiene Law bestows upon the Commissioner the responsibility of promoting, establishing, coordinating, and conducting programs for the prevention, diagnosis, treatment, aftercare, rehabilitation, and control in the field of substance use disorder.

(c) Section 19.40 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for the provision of substance use disorder services.

(d) Section 22.09 of the Mental Hygiene Law directs the Commissioner to designate hospitals and other appropriate facilities as providers of emergency detoxification and stabilization services for persons needing or seeking emergency treatment.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.3 Applicability

(a) This Part applies to any person or entity organized and operating pursuant to the provisions of this Title and certified, funded or otherwise authorized by the Office to provide a substance use disorder withdrawal and stabilization service.

(b) Nothing in this Part shall be construed to limit the authority of a hospital licensed pursuant to Article 28 of the Public Health Law to provide detoxification and stabilization in a medical/surgical bed or emergency room.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.4 Definitions

(a) "Detoxification" or "detox" means a medical withdrawal and stabilization regimen under the supervision of a physician or nurse practitioner, consistent with federal authority, to reduce systematically the amount of an addictive substance on which the patient is physiologically dependent, provide reasonable control of active withdrawal symptoms and/or avert a lifethreatening medical crisis related to the substance on which the patient is physiologically dependent.

(b) "Discrete unit" means an OASAS program certified pursuant to Article 32 of the Mental Hygiene Law providing inpatient or outpatient substance use disorder treatment co-located in a facility licensed pursuant to Article 28 of the Public Health Law because such facility is providing treatment due to a consistent demand exceeding five (5) medical-surgical beds, or greater than 10% of overall patient days.

(c) "Medically managed withdrawal and stabilization services" are 24/7 services designed for individuals who are acutely ill from alcohol and/or substance related addictions or dependence, including the need for medical management of persons with severe withdrawal or risk of severe withdrawal symptoms, and may include individuals with or at risk of acute physical or psychiatric co-occurring conditions. This level of care includes the forty-eight (48) hour observation bed. Individuals who have stabilized in a medically managed detoxification service may transition to a medically supervised service within the same service setting or may be transferred to another service setting.

(d) "Medically supervised inpatient withdrawal and stabilization services" means services for the treatment of moderate withdrawal symptoms and non-acute physical or psychiatric complications. This service is physician directed and staffed 24/7 with medical staff and includes twenty-four (24) hour emergency medical coverage. Medically supervised withdrawal and stabilization services are appropriate for persons who are intoxicated by alcohol and/or substances, who are experiencing or who are expected to experience withdrawal symptoms that require medical oversight. Individuals who have stabilized in a medically managed or medically supervised inpatient withdrawal service may transition to a medically supervised outpatient service.

(e) "Medically supervised outpatient" means services appropriate for persons who are suffering from mild to moderate withdrawal or persons experiencing non-acute physical or psychiatric complications associated with their substance use disorder and who are unable to detox on their own without withdrawal complications, but who retain a stable living environment.

(f) "Observation bed" means a service providing intensive assessment and treatment of withdrawal where the patient has continuous periodic evaluation for up to forty-eight (48) hours. The care given in an observation bed is a medically managed level of care.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.6 Additional requirements for medically managed withdrawal and stabilization services

(a) Unless otherwise authorized medically managed withdrawal and stabilization services, as defined in this Part, shall only be provided in facilities certified by the Office and licensed by the Department of Health as a general hospital pursuant to Article 28 of the Public Health Law.

(b) Required services. Medically managed services must provide, at a minimum, all of the following services:

(1) medical management of acute intoxication and withdrawal conditions;

(2) an observation period for up to forty-eight (48) hours of admission. Patients found to be stable and able to step-down to a lower level of care shall be transferred within or to another facility, with specific discharge instructions, as soon as possible;

(3) medically supervised inpatient withdrawal services.

(1) The medical director of a medically managed withdrawal and stabilization service, whether full or part time, may also serve as director of another service provided by the same program governing authority.

(2) A physician must be on duty or on call at all times.

(3) There must be a physician, nurse practitioner and/or physician assistant under the supervision of a physician, on-site sufficient hours to perform the initial medical history and physical examination of all patients and to prescribe any and all necessary medications necessary to ensure safe withdrawal.

(4) There shall be registered nursing personnel immediately available to all patients at all times. Nursing services shall be under the direction of a registered nurse who has at least one year of experience in the nursing care and treatment of substance use disorders and related medical and psychiatric illnesses.

(5) There shall be sufficient hours of psychiatric provider time to meet the assessment and treatment needs of those patients with other psychiatric disorders in addition to substance use disorders.

(6) There shall be sufficient clinical staff both to maintain a ratio of one counselor for each 10 beds and be scheduled to be available for one and one-half shifts, seven (7) days per week.

(7) One of the full time equivalent qualified health professionals employed by the service shall be designated to provide discharge and treatment/recovery planning to persons admitted to the service.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.7 Additional requirements for medically supervised inpatient withdrawal and stabilization services

(a) Medically supervised withdrawal services can be delivered only by a provider of services certified by the Office to provide a continuum of care encompassing: residential, inpatient or outpatient substance use disorder treatment services in order to ensure appropriate continuation in treatment.

(b) Each inpatient medically supervised withdrawal service shall have a director who is a qualified health professional with at least two years of full-time clinical work experience in the treatment of substance use disorder prior to appointment. The director may also serve as director of another service provided by the same governing authority.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.9 Standards pertaining to Medicaid reimbursement

Medicaid reimbursement shall be provided in accordance with the provisions of 14 NYCRR Part 841.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 816.10 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

Part 817 Substance Use Disorder Residential Rehabilitation Services for Youth (RRSY)

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.1 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the Commissioner to adopt standards including necessary rules and regulations pertaining to addiction services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under their jurisdiction.

(d) Section 19.40 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for the provision of addiction services.

(e) Section 32.01 of the Mental Hygiene Law authorizes 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.

(f) Section 32.07 (a) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the Mental Hygiene Law.

(g) Section 32.09 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for services that treat individuals with a substance use disorder.

(h) Section 3309 of the Public Health Law authorizes the DOH to establish standards for approval of any opioid overdose prevention program.

(i) Article 27F of the Public Health Law defines the rules governing HIV testing and treatment in New York.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.2 General program standards

(a) Policies and procedures. The program governing authority must approve written policies, procedures and methods governing the provision of services that are strength-based, person centered and trauma informed to patients in compliance with Office regulations including a description of each service provided and the overall approach to service delivery and a description of evidence-based practices employed in group, individual and family treatment. Such policies and procedures shall address, at a minimum, the following:

(1) procedures and specific criteria for admission, retention, transfer, referrals and discharge;

(2) level of care determinations utilizing the OASAS level of care determination protocol, treatment/recovery plans, and placement services;

(3) staffing, including but not limited to, training, supervision, and use of student interns, peers, and volunteers;

(4) the provision of medical and psychiatric services, including screening and referral for associated physical or mental health conditions;

(5) a schedule of fees for services rendered;

(6) infection control procedures;

(7) cooperative agreements with other substance use disorder services providers and other providers of services that the patient may need;

(8) compliance with other requirements of applicable local, state and federal laws and regulations, OASAS guidance documents and standards of care regarding, but not limited to:

(i) education, counseling, prevention and treatment of communicable diseases, including viral hepatitis, sexually transmitted infections and HIV/AIDS; regarding HIV, such education, counseling, prevention and treatment shall include condom use, testing, pre- and post-exposure prophylaxis and treatment;

(ii) the use of toxicology tests as clinically appropriate; and

(iii) medication and the use of medication for addiction treatment;

(iv) if acupuncture is provided it must be provided in accordance with Part 830 of this Title;

(v) the use of a problem gambling screen approved by OASAS.

(9) record keeping procedures which ensure that documentation is accurate, timely, prepared by appropriate staff, and in conformance with the federal confidentiality regulations contained in 42 Code of Federal Regulations Part 2; and

(10) Utilization review and quality improvement. All programs must have a utilization review process, a quality improvement committee, and a written plan that identifies key performance measures.

(b) Program goals. The program shall have as its goals:

(1) the improvement of functioning and development of coping skills necessary to enable the patient to be safely, adequately and responsibly treated in the least intensive environment; and

(2) the development of individualized plans to support the maintenance of recovery, attain selfsufficiency, and improve the patient's quality of life.

(c) Minimum services. An array of services shall be provided including, but not limited to, those listed below. The services must be clinically indicated and specified in the individualized treatment/recovery plan.

(1) Clinical services including:

(i) Counseling services: trauma-informed, person centered individual, group and family counseling as appropriate; Group counseling sessions must be structured in size and duration to maximize therapeutic benefit for each participant. Program policies must include a process for determining group size, group purpose, monitoring patient experience, and assessing group efficacy; activities therapy;

(ii) Assessment and referral services for patients and significant others;

(iii) Medical and psychiatric consultation;

(iv) HIV and AIDS, hepatitis C, tuberculosis, and other communicable diseases education, risk assessment, supportive counseling and referral;

(2) Recovery support services including:

(i) substance use education, awareness and recurrence prevention;

(ii) education about, orientation to, and the opportunity for participation in, available and relevant selfhelp and peer support groups including Alternative Peer Groups;

(iii) holistic health practices; socialization skills;

(3) Educational assessment and educational services, as appropriate and as required by law, either directly or by arrangement with local school districts including:

(i) Vocational assessment and vocational services;

(ii) life skills training.

(d) Medication for Addiction Treatment.

(1) All programs shall maintain a patient with substance use disorder on approved medication, including those federal Food and Drug Administration (FDA) approved medications to treat substance use disorder, if deemed clinically appropriate and in collaboration with the patient's existing provider, and with patient consent, in accordance with federal and state rules and guidance issued by the Office. The program shall document such contact with the existing program or practitioner prescribing such medications.

(2) To facilitate access to full opioid agonist medication for patients who are maintained on such medication at the time of admission or who choose to start such medication during admission, the program shall develop a formal agreement with at least one Opioid Treatment Program (OTP) certified by the Office to facilitate patient access to full opioid agonist medication, if clinically appropriate. Such agreements shall address the program and the OTPs responsibilities to facilitate patient access to such medication in accordance with guidance issued by the Office.

(3) The program shall provide FDA approved medications to treat substance use disorder to an existing patient or prospective patient seeking admission to an Office certified program in accordance with all federal and state rules and guidance issued by the Office.

(4) The program shall provide education to an existing patient or prospective patient with substance use disorder about approved medications for the treatment of substance use disorder if the patient is not already taking such medications, including the benefits and risks. The program shall document such discussion and the outcome of such discussion, including a patient's preference for or refusal of medication, in the patients record.

(5) The program shall ensure that the patient's discharge plan includes an appointment with a treatment provider or program that can continue the medication post-discharge.

(e) Emergency medical kit. Pursuant to Part 800 of this Title, all programs must maintain an emergency medical kit at each certified or funded location; such kit must include basic first aid and naloxone emergency overdose prevention kit in a quantity sufficient to meet the needs of the program. Programs must develop and implement a plan to have staff trained in the prescribed use of a naloxone overdose prevention kit such that it is available for use during all program hours of operation.

(1) All staff and patients should be notified of the existence of the naloxone overdose prevention kit and the authorized administering staff.

(2) Nothing in this regulation shall preclude patients from becoming authorized in the administration of the naloxone emergency overdose prevention kit, provided however, the program director must be notified of the availability of any additional authorized users.

(f) Food and nutrition.

(1) Each facility shall provide to each patient three (3) nutritious meals each day which furnish sufficient nutrients and calories to meet normal needs as well as the special needs of persons in recovery.

(2) The facility shall have available snacks and beverages between meals.

(3) A dietician or dietetic technician acting within their scope of practice shall provide menu planning services. Other suitable staff shall be responsible for the procurement of food supplies and the training and directing of food preparation and serving personnel.

(g) Certified capacity. The certified bed capacity of each RRSY program shall not be exceeded at any time except with the written approval of the Office.

(h) Medicaid. Providers seeking Medicaid reimbursement must comply with the requirements of this Part and Part 841 of this Title.

(i) Segregation. All patients must at all times be kept physically separated from patients of non-Part 817 services. In accordance with a provider-specific plan approved by the Office prior to implementation, certain groups of patients shall be kept physically separated within the facility based upon clinically appropriate age, gender and developmental grouping.

(k) Telehealth. Services may be delivered using telehealth consistent with Part 830 of this Title.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.3 Admission procedures

(a) Initial determination.

(1)An individual who appears at the service seeking treatment or evaluation shall have an initial determination made and documented in a written record by a qualified health professional, or other clinical staff under the supervision of a qualified health professional, which states the following:

(i) that the individual is documented as less than twenty-one (21) years of age on the date of admission and appears to be in need of substance use disorder services;

(ii) that the individual appears to be free of serious communicable diseases that can be transmitted through ordinary contact; and

(iii) that the individual appears not to be in need of acute hospital care, acute psychiatric care, Part 816 crisis services or other services which cannot be provided in conjunction with treatment at the facility or would prevent them from participating in substance use disorder treatment.

(2) The initial determinations made pursuant to the above shall be based upon provider records, reports from other providers and face-to-face contact with the individual, all of which must be documented.

(b) Level of care determination. If an individual is determined to be appropriate for substance use disorder treatment services, a level of care determination utilizing the OASAS level of care determination protocol, shall be made by a clinical staff member. The level of care determination shall be made no later than one patient day after the patient's first on-site visit to the program and documented in the patient record.

(c) Prohibition against discrimination. Individual's may not be denied admission to the service consistent with the provisions of Part 815 of this Title.

(d) Additional requirements for the admission of Medicaid eligible individuals. A provider must obtain preadmission approval as follows prior to admitting Medicaid eligible individuals to the program.

(1) The Office shall establish a pre-admission review team ("ART") that shall use the requirements of this Section to review each individual candidate to determine their appropriateness for admission. If deemed appropriate for admission, the ART shall certify that the individual seeking admission is in need of this level of residential treatment for substance use disorder. The ART shall be operated in accordance with the procedures established by the Office and shall at a minimum consist of a Physician, a Social Worker licensed and currently registered as such by the New York State Education Department, and a Credentialed Alcoholism and Substance Abuse Counselor (CASAC).

(2) Except in emergency circumstances, the service provider must obtain approval from the ART prior to admitting a Medicaid eligible individual. Emergency admissions are authorized only when an individual appears for treatment meeting the admission criteria and meets one of the following conditions:

(i) the individual has a history of recurrent use outside of a structured 24-hour setting;

(ii) the individual is unable to access transitional services in the community; or

(iii) the individual is without appropriate housing.

(3) Under no circumstances should an individual be admitted on an emergency basis or otherwise if they are in medical or psychiatric crisis or if they are in need of withdrawal services and an appropriate referral for such services is made.

(e) Admission criteria.

(1) To be admitted to the program it must be determined that ambulatory services in the community do not meet the needs of the individual recipient or the individual's environment is not conducive to recovery.

(2) If the individual is deemed inappropriate for service, unless the individual is already receiving substance use disorder services from another provider, a referral and connection to a more appropriate service provider shall be made. The reasons for denial of admission must be provided to the individual and documented in a written record maintained by the service provider.

(3) The decision to admit shall be made by a staff member who is a qualified health professional authorized by the program governing authority to admit individuals. The name of the qualified health professional who made the admission decision, along with the date of admission, must be documented in the patient record.

(4) There must be a notation in the case record that the patient received a copy of the program's rule and regulations, including patient rights and a summary of federal confidentiality requirements, and a statement that notes that such rules were discussed with the patient, and that the patient indicated that they understood them.

(5) All prospective patients must be informed that admission to a program is on a voluntary basis and a prospective patient is free to discharge themselves from the service at any time. For prospective patients under an external mandate, the potential consequences for premature discharge must be explained, including that the external mandate does not alter the voluntary nature of admission and continued treatment.

(6) Individuals under the age of eighteen may be admitted without the consent of a parent or legal guardian under certain circumstances in accordance with Mental Hygiene Law Section 22.11.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.5 Treatment / recovery plan

(a) Treatment / recovery plan. Each patient must have a written patient-centered treatment/recovery plan developed by clinical staff and patient as soon as possible after admission but not later than ten (10) calendar days after admission. Standards for developing a treatment/recovery plan include, but are not limited to:

(1) The treatment/recovery plan must also be developed in consultation with the patient's parent or guardian unless the minor is being treated without parental consent as authorized by Mental Hygiene Law section 22.11.

(2) For patients moving directly from one program to another, the existing treatment/recovery plan may be used if there is documentation that it has been reviewed and, if necessary, updated within ten (10) days of transfer.

(b) Treatment/recovery plan. The treatment/recovery plan must:

(1) include each diagnosis for which the patient is being treated;

(2) address patient identified problem areas specified in the admission assessment and concerns which may have been identified subsequent to admission, and identify methods and treatment approaches that will be utilized to achieve the goals developed by the patient and primary counselor;

(3) identify a single member of the clinical staff responsible for coordinating and managing the patient's treatment who shall approve and sign (physical or electronic signature) such plan; and

(4) be reviewed, approved, signed and dated by the physician within fourteen (14) days after admission.

(5) Where a service is to be provided by any other program off-site, the treatment/recovery plan must contain a description of the nature of the service, a record that referral for such service has been made, and the results of the referral.

(1) The clinical staff shall ensure that the treatment/recovery plan is included in the patient record and that all treatment is provided in accordance with the individual treatment/recovery plan.

(2) If, during the course of treatment, revisions to the treatment/recovery plan are determined to be clinically necessary, the plan shall be revised accordingly by the clinical staff member.

(3) The treatment/recovery plan must be reviewed, and revised if necessary, at least once within every thirty (30) calendar days from the date of admission. Reviews should occur more frequently when a patient is not responding to treatment as planned or if a significant incident occurs. Reviews of the treatment plan shall be signed (physical or electronic signature) by a physician.

(d) Progress notes.

(1) A progress note shall be written, signed and dated by the clinical staff member or another clinical staff member familiar with the patient's care no less often than once per week. Such progress note shall provide a chronology of the patient's participation in all significant services provided, their progress related to the initial services or the goals established in the treatment/recovery plan and be sufficient to delineate the course and results of treatment/services.

(e) Discharge and planning for level of care transitions.

(1) The discharge planning process shall begin as soon as the patient is admitted and shall be considered a part of the treatment planning process. The plan for discharge and level of care transitions shall be developed in collaboration with the patient and any significant other(s) the patient chooses to involve. If the patient is a minor, the plan must also be developed in consultation with the patient's parent or guardian, unless the minor is being treated without parental consent as authorized by Mental Hygiene Law Section 22.11.

(2) Discharge should occur when:

(i) the patient meets criteria documented by the OASAS level of care determination protocol for an alternate level of care and has attained skills necessary to identify and manage cravings and urges to use substances, stabilized psychiatric and medical conditions, and has identified a plan for returning to their community;

(ii) the patient has received maximum benefit from the service provided by the program; or

(iii) the individual is disruptive and/or fails to comply with the program's reasonably applied written behavioral standards, provided the individual is offered a referral to another treatment program and discharge is otherwise in accordance with Part 815 of this Title.

(3) No patient shall be discharged without a discharge plan which has been completed and reviewed by the multi-disciplinary team prior to the discharge of the patient. This review may be part of a regular treatment/recovery plan review. The portion of the discharge plan which includes the referrals for postdischarge shall be given to the patient. This requirement shall not apply to patients who leave the program without permission, refuse continuing care planning, or otherwise fail to cooperate.

(4) The discharge plan shall be developed by the clinical staff member, who, in the development of such plan, shall consider the patient's self-reported confidence in maintaining their health and recovery and following an individualized safety plan. The clinical staff member shall also consider an assessment of the patient's home and family environment, vocational/educational/employment status, and the patient's relationships with significant others. The purpose of the discharge plan shall be to establish the level of clinical and social resources available to the individual post-treatment and the need for the services for significant others. The plan shall include, but not be limited to, the following:

(i) identification of any other treatment, rehabilitation, self-help and vocational, educational and employment services the patient will need after discharge;

(ii) identification of the type of residence, if any, that the patient will need after discharge;

(iii) identification of specific providers of these needed services;

(iv) specific referrals and initial appointments for these needed services;

(v) the patient, and their family/significant other(s) shall be offered naloxone education and training and a naloxone kit or prescription; and

(vi) an appointment with a community based provider to continue access to medication for addiction treatment.

(5) A discharge summary which includes the course and results of care and treatment must be prepared and included in each patient's case record within twenty (20) days of discharge.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.6 Patient records

(a) Patient Records.

(1) Programs must maintain individual patient records for each patient served. Patient records are confidential and may only be disclosed in conformity with federal regulations regarding the confidentiality of records related to persons receiving treatment for substance use disorder as set forth in 42 Code of Federal Regulations Part 2, or other applicable state and federal laws.

(2) There shall be a single individual record for each person admitted to the program which shall include, at a minimum:

(i) identifying information about the patient and their family;

(ii) the source of referral, date of commencing service and name of primary counselor;

(iii) the admission diagnosis, including substance use related, medical, and psychiatric diagnoses in official nomenclature with associated diagnostic codes;

(iv) reports of all evaluations performed, including findings and conclusions;

(v) reports of all examinations performed, including but not limited to X-rays, clinical laboratory tests, clinical psychological tests, electroencephalograms, and psychometric tests;

(vi) the written and signed individual treatment plan, including all reviews and updates;

(vii) progress notes informative of the patient's condition and response to treatment, written and signed by staff members;

(viii) summaries of case conferences, treatment plan updates, and special consultations and communications held;

(ix) dated and signed prescriptions or orders for all medications with notation of termination dates;

(x) the discharge and level of care transitions plan;

(xi) any other documents or information regarding the patient's condition, treatment, and results of treatment; and

(xii) signed forms consenting to treatment and for obtaining or releasing confidential information in accordance with 42 Code of Federal Regulations Part 2 or other applicable law.

(b) Disclosures. Disclosure of HIV related information contained in a patient's record shall be made in accordance with the Article 27f of the Public Health Law, other applicable state and federal statutes and regulations, and subject to the additional disclosure requirements of 42 Code of Federal Regulations Part 2.

(c) Reporting to Office. Statistical information shall be reported to the Office as required and on the prescribed forms therefor.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.7 Staffing

(a) Medical Director and medical staff.

(1) The medical director, as defined in Part 800 of this Title, shall oversee the development and revision of medical policies, procedures and ongoing training for matters such as routine medical care, specialized services, and medical and psychiatric emergency care, and supervision of medical staff.

(2) Programs providing treatment for persons with co-existing medical or psychiatric conditions in addition to their substance use disorder shall have an appropriately qualified physician, physician assistant, nurse practitioner, psychiatrist or psychologist on-site or through telehealth, pursuant to Part 830 of this Title, for a sufficient number of hours each week to provide evaluation, treatment and supervision of such other services for these patients.

(3) There shall be at least one full-time registered professional nurse and additional licensed practical nurses, registered nurses, registered physician's assistants, and nurse practitioners sufficient to provide the services required. Such personnel shall be available to all patients at all times.

(4) The medical director may also serve as a physician of another service which is provided by the facility. The general severity of the condition of the population served, including comorbid conditions, complications and general functioning, may indicate the need for staff in addition to those identified in this section.

(b) Staff sharing. Staff may be either specifically assigned to the inpatient service or may be part of the staff of the facility within which the inpatient service is located. However, if these staff members are part of the general facility staff, they must have specific training and experience in the treatment of substance use disorder specific to the services provided. The percentage of time that each shared staff is assigned to the inpatient service must be documented.

(c) Supervision and training. Each program must provide clinical supervision and ensure and document a plan for staff training based on individual employee needs. Subject areas appropriate for training shall be identified by the Office.

(d) Program director. There shall be a director of the program who is a qualified health professional with at least:

(1) four (4) years experience in the human services field;

(2) two (2) years experience in the provision of substance use disorder treatment services;

(3) two (2) years of administration and supervisory experience prior to appointment as director; and

(4) two (2) years of adolescent services experience.

(e) Other clinical staff.

(1) At least 50 percent of all clinical staff shall be qualified health professionals as defined in Part 800 of this Title. CASAC Trainees may be counted towards satisfying the 50 percent requirement provided, however, that such individuals shall not be considered qualified health professionals for any other purpose under this Part.

(2) Clinical staff members who are not qualified health professionals shall have qualifications appropriate to their assigned responsibilities as set forth in the inpatient service's written personnel policies, shall be subject to appropriate staff supervision, and shall receive regular and continuing education and training.

(3) There shall be at least one clinical staff member, as defined in Part 800 of this Title, designated to provide activities therapy;

(4) There shall be at least one counselor for every eight (8) patients, at least 50 percent of whom shall be qualified health professionals. Counseling staff shall be scheduled for a minimum of one and one-half shifts five days per week, and one shift per day for the remaining two days per week;

(5) There shall be clinical staff available to all patients at all times. During late evening and night shifts, there shall be at least two clinical staff members on duty. This staff shall be awake at all times, make frequent rounds and be available to patients who awaken during the night;

(6) There shall be at least one full time equivalent Licensed Mental Health Counselor or Social Worker licensed and currently registered as such by the New York State Education Department experienced in substance use treatment and adolescents. If qualified to do so, this individual may also perform the family therapist function required in paragraph (7) below.

(7) There shall be at least one full time equivalent Family Therapist who is a Social Worker licensed and currently registered as such by the New York State Education Department or a licensed Marriage and Family Therapist. If qualified to do so, this individual may also perform the social worker function required in paragraph (6) above.

(8) There shall be sufficient clinical staff to achieve an overall ratio of at least one full time equivalent staff for each four (4) patients.

(f) Additional required staff.

(1) Maintenance and security. There shall be sufficient staff available to ensure that the program facility and all equipment utilized therein is maintained in such a manner as to provide patients with a clean and safe environment.

(2) Volunteers and interns. In addition to staffing requirements of this Part, a program may utilize volunteers, students and trainees, on a salaried or non-salaried basis. Such personnel shall be provided close professional staff supervision and appropriate education from both internal and external sources.

(3) Health coordinator. Each program shall have a qualified individual designated as the Health Coordinator who will ensure the provision of education, risk reduction, counseling and referral services to all patients regarding HIV, tuberculosis, hepatitis, sexually transmitted infections, and other communicable diseases.

(4) Community Support Specialist. There shall be at least one Community Support Specialist for every thirty (30) patients or portion thereof who shall be responsible for coordinating care for the patient and assisting in discharge planning.

(5) Intake/admissions coordinator. There shall be one staff member designated to perform an Intake/Admissions Coordinator function.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.8 Severability

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

N.Y. Comp. Codes R. & Regs. Tit. 14 § 817.9 Savings and renewal clause

Any operating certificate issued by the Office prior to the promulgation of this Part for the operation of a program subject to regulations of the former Part 818 shall remain in effect until the term of such operating certificate has been renewed or such operating certificate is suspended or revoked through process of law, at which time any recertification of such program or renewal of such operating certificate shall be pursuant to the provisions of this Part.

History

Adopted New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

Part 818 Chemical Dependence Inpatient Rehabilitation Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 818.1 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the Commissioner to adopt standards including necessary rules and regulations pertaining to substance use disorder services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 19.40 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for the provision of substance use disorder services.

(d) Section 32.01 of the Mental Hygiene Law authorizes the 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.

(e) Section 32.07 (a) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the Mental Hygiene Law.

(f) Section 3309 of the Public Health Law authorizes the DOH to establish standards for approval of any opioid overdose prevention program.

(g) Article 27f of the Public Health Law defines the rules governing HIV testing and treatment in New York.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 818.3 Admission procedures

(a) Admission requirements for all programs.

(1) The admission assessment or decision to admit must include identification of initial services needed until the development of the treatment/recovery plan.

(2) Unless otherwise authorized, the program must document that the individual is determined to have a substance use disorder based on the criteria in the most recent version of the Diagnostic and Statistical Manual (DSM) or the International Classification of Diseases (ICD);

(3) The decision to admit an individual must be made by a clinical staff member who is a qualified health professional and must be documented by the dated signature (physical or electronic signature) of the qualified health professional and include the basis for admitting the patient.

(4) An individual who appears at the inpatient program seeking or having been referred for treatment or evaluation shall have an initial determination made and documented in a written record by a qualified health professional, or other clinical staff under the supervision of a qualified health professional, which states that the individual appears to not need acute hospital care, acute psychiatric care, or other intensive services which cannot be provided in conjunction with inpatient care or which would prevent them from participating in substance use disorder treatment.

(b) Level of care determination. If an individual is determined to be appropriate for substance use disorder treatment services, a level of care determination utilizing the OASAS level of care determination protocol, shall be made by a clinical staff member. The level of care determination shall be made no later than twenty-four (24) hours after the patient's first on-site visit to the program.

(1) No individual shall be denied admission to the inpatient program consistent with the provisions in Part 815 of this Title

(2) All prospective patients must be informed that admission to a program is on a voluntary basis and a prospective patient is free to discharge themselves from the service at any time. For prospective patients under an external mandate, the potential consequences for premature discharge must be explained, including that the external mandate does not alter the voluntary nature of admission and continued treatment.

(d) Admission criteria.

(1) If the individual is deemed inappropriate for inpatient services, unless the individual is already receiving substance use disorder treatment services from another provider, a referral and connection to a more appropriate service shall be made. The reasons for a denial of admission must be provided to the individual and documented in a written record maintained by the program.

(2) There must be a notation in the case record that the patient received a copy of the inpatient program's rules and regulations, including patient rights and a summary of federal confidentiality requirements, and a statement that notes that such rules were discussed with the patient, and that the patient indicated that they understood them.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 818.4 Post-admission procedures

(a) Post-admission.

(1) As soon as possible after admission, for all patients, all programs must:

(i) offer viral hepatitis testing; testing may be done on site or by referral;

(ii) offer HIV testing; testing may not be conducted without patient written informed consent except in situations specifically authorized by law; testing may be done on site or by referral; individuals on a regimen of pre- or post-exposure prophylaxis, must be permitted to continue the regimen until consultation with the prescribing professional occurs.

(2) If clinically indicated, all programs must:

(i) conduct an intradermal skin or blood-based Tuberculosis test; testing may be done on site or by referral with results as soon as possible after testing; for patients with a positive test result, refer the patient for further tuberculosis evaluation.

(ii) offer testing for other sexually transmitted infections; testing may be done on site or by referral;

(iii) provide or recommend any other tests the examining physician or other medical staff member deems to be necessary including, but not limited to, an EKG, a chest X-ray, or a pregnancy test.

(3) As soon as possible after testing programs must explain any blood and skin test results to the patient.

(b) Initial evaluation.

(1) The goal of the initial evaluation, to be completed within twenty-four (24) hours of admission, shall be to obtain whatever relevant information is necessary to develop an individualized patientcentered treatment/recovery plan. The initial evaluation shall comprise a written report of findings and conclusions and shall include the names of any staff or other persons participating in the evaluation.

(2) Initial services. Th initial evaluation shall include an identification of initial services needed, and schedules of individuals and group counseling to address the needed services until the development of the treatment plan. The initial services shall be based on goals the patient identifies for treatment.

(1) For those patients who do not have available a medical history and no physical examination has been performed within twelve (12) months, within three (3) days after admission the patient's medical history shall be recorded and placed in the patient's case record and the patient shall receive a physical examination by a physician, physician's assistant, or a nurse practitioner. The physical examination may include but shall not be limited to the investigation of, and if appropriate, screenings for infectious diseases; pulmonary, cardiac or liver abnormalities; and physical and/or mental limitations or disabilities which may require special services or attention during treatment. The physical examination shall also include the following laboratory tests:

(i) complete blood count and differential;

(ii) routine and microscopic urinalysis;

(iii) if medically or clinically indicated, urine screening for drugs;

(iv) intradermal PPD, given and interpreted by the medical staff unless the patient is known to be PPD positive;

(v) or any other tests the examining physician or other medical staff member deems to be necessary, including, but not limited to, an EKG, a chest X-ray, or a pregnancy test.

(2) If the patient has a medical history available and has had a physical examination performed within twelve (12) months prior to admission, or if the patient is being admitted directly to the inpatient service from another substance use disorder service authorized by the Office, the existing medical history and physical examination documentation may be used to comply with the requirements of this Part, provided that such documentation has been reviewed and determined to be current and accurate.

(3) Patient records shall include a summary of the results of the physical examination and shall also demonstrate that appropriate medical care is recommended to any patient whose health status indicates the need for such care.

(d) Referral and connection.

(1) If the initial evaluation indicates that the individual needs services beyond the capacity of the inpatient program to provide either alone or in conjunction with another program, referral and connection to appropriate services shall be made. Identification of such referrals and connections and the results of those referrals to identified program(s) shall be documented in the patient record.

(2) If a patient is referred directly to the inpatient program from another program certified by the Office, or is readmitted to the same program within sixty (60) days of discharge, the existing level of care determination and evaluation or treatment/recovery plan may be used, provided that documentation is maintained demonstrating a review and update.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 818.5 Treatment / recovery plan

(a) Treatment / recovery plan.

(1) Each patient must have a written person-centered treatment/recovery plan developed by clinical staff and patient no later than seven (7) calendar days after admission. Standards for developing a treatment/recovery plan include, but are not limited to:

(2) If the patient is a minor, the treatment/recovery plan must also be developed in consultation with the patient's parent or guardian unless the minor is being treated without parental consent as authorized by Mental Hygiene Law section 22.11.

(3) For patients moving directly from one program to another, the existing treatment/recovery plan may be used if there is documentation that it has been reviewed and, if necessary, updated within twenty-four (24) hours of transfer.

(b) Treatment/recovery plan. The treatment/recovery plan must:

(1) include each diagnosis for which the patient is being treated;

(3) identify a single member of the clinical staff responsible for coordinating and managing the patient's treatment who shall approve and sign (physical or electronic signature) such plan; and

(4) be reviewed, signed and dated by the physician within ten (10) days of admission.

(5) Where a service is to be provided by any other program off site, the treatment/recovery plan must contain a description of the nature of the service, a record that referral for such service has been made, and the results of the referral.

(1) The clinical staff shall ensure that the treatment/recovery plan is included in the patient record and that all treatment is provided in accordance with the individual treatment/recovery plan.

(2) If, during the course of treatment, revisions to the treatment/recovery plan are determined to be clinically necessary, the plan shall be revised accordingly by the clinical staff member.

(d) Progress notes. A progress note shall be written, signed and dated by the clinical staff member or another clinical staff member familiar with the patient's care no less often than once per week. Such progress note shall provide a chronology of the patient's participation in all significant services provided, their progress related to the initial services or the goals established in the treatment/recovery plan and be sufficient to delineate the course and results of treatment/services.

(e) Discharge and planning for level of care transitions.

(1) The discharge planning process shall begin as soon as the patient is admitted and shall be considered a part of the treatment planning process. The plan for discharge and level of care transitions shall be developed in collaboration with the patient and any significant other(s) the patient chooses to involve. If the patient is a minor, the discharge plan must also be developed in consultation with the patient's parent or guardian, unless the minor is being treated without parental consent as authorized by Mental Hygiene Law Section 22.11.

(2) Discharge should occur when:

(i) the patient meets criteria documented by the OASAS level of care determination protocol for an alternate level of care and has attained skills in identifying and managing cravings and urges to use substances, stabilized psychiatric and medical conditions, and has identified a plan for returning to their community;

(ii) the patient has received maximum benefit from the service provided by the program; or

(iii) the individual is disruptive and/or fails to comply with the program's written behavioral standards, provided that the individual is offered a referral and connection to another treatment program and discharge is otherwise in accordance with Part 815 of this Title.

(3) No patient shall be discharged without a discharge plan which has been completed and reviewed by the multi-disciplinary team prior to the discharge of the patient. This review may be part of a regular treatment/recovery plan review. The portion of the discharge plan which includes the referrals for continuing care shall be given to the patient upon discharge. This requirement shall not apply to patients who leave the program without permission, refuse continuing care planning, or otherwise fail to cooperate.

(i) identification of any other treatment, rehabilitation, self-help and vocational, educational and employment services the patient will need after discharge;

(ii) identification of the type of residence, if any, that the patient will need after discharge;

(iii) identification of specific providers of these needed services;

(iv) specific referrals and initial appointments for these needed services;

(v) the patient, and their family/significant other(s) shall be offered naloxone education and training and a naloxone kit or prescription; and

(vi) an appointment with a community based provider to continue access to medication for addiction treatment.

(5) A discharge summary which includes the course and results of care and treatment must be prepared and included in each patient's case record within twenty (20) days of discharge.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 818.8 Severability

N.Y. Comp. Codes R. & Regs. Tit. 14 § 818.9 Severability

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

Part 819 Chemical Dependence Residential Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.1 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the Commissioner to adopt standards including necessary rules and regulations pertaining to substance use disorder services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under their jurisdiction.

(c) Section 19.40 of the Mental Hygiene Law authorizes the Commissioner of the Office to issue operating certificates for the provision of substance use disorder services.

(d) Section 32.01 of the Mental Hygiene Law authorizes the Commissioner of the Office to adopt any regulation reasonably necessary to implement and exercise effectively the powers and perform the duties conferred by Article 32 of the Mental Hygiene Law.

(e) Section 32.07 (a) of the Mental Hygiene Law authorizes the Commissioner of the Office to adopt regulations to effectuate the provisions and purposes of Article 32 of the Mental Hygiene Law.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.2 Definitions

For purposes of this Part, the following definitions are applicable:

(a) Substance use disorder residential service or residential service means a substance use disorder residential service providing an array of services for persons with substance use disorders, which may be provided directly or through cooperative relationships with other community service providers.

(b) Levels of service. There are three levels of service that can be offered in a residential setting which are distinguished by the complement of services available on site as well as the functional capacity of the patient served in each setting:

(1) Intensive residential rehabilitation services means substance use disorder residential services requiring twenty four hours a day, seven days per week treatment in a structured environment for individuals whose potential for independent living in recovery is contingent upon social habilitation or rehabilitation. An integral part of this service is the case management of additional services from other providers that are needed by the resident. This level of residential service requires established written agreements with other appropriately certified providers to furnish physical and mental health treatment services, in addition to educational, social and vocational services. These services are appropriate for individuals who require substance use disorder services in a residential setting as determined by utilizing the OASAS level of care determination protocol.

(2) Community residential services means substance use disorder residential services providing supervised services to persons making the transition to independent living. Persons appropriate for this service require the support of a substance free environment while receiving either outpatient services or educational and/or vocational services. These transitional residential services are for individuals who are completing or have completed a course of treatment, but who are not ready for independent living yet due to unresolved clinical issues or unmet needs for personal, social or vocational skills development. These services are appropriate for individuals who require ongoing clinical support.

(3) Supportive living services means substance use disorder treatment services which are designed to promote independent living in a supervised setting for individuals who have completed another course of treatment, are making the transition to independent living, and whose need for services does not require staffing on site twenty-four hours a day. These treatment services are for individuals who either require a long-term supportive environment following care in another type of residential service for an undetermined length of stay, or who are in need of a transitional living environment prior to establishing independent community living.

(c) Resident, for purposes of this Part, means the individual admitted to and receiving services from the residential service provider certified pursuant to this Part.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.3 Standards applicable to all residential service providers

(a) The program governing authority must approve written policies, procedures and methods governing the provision of services to residents in compliance with Office regulations and guidance which shall include a description of each service provided, including procedures for making appropriate referrals to and from other services, when necessary. These policies, procedures, and methods, shall address, at a minimum, the following:

(1) procedures and specific criteria for admission, retention, transfers, referrals, and discharge;

(2) level of care determinations utilizing the OASAS level of care determination protocol, comprehensive evaluations, treatment/recovery plans, and placement services;

(3) staffing including, but not limited to, training and the use of students, peers, and volunteers, and appropriate criminal history reviews as otherwise required by this Title;

(4) the provision of medical services, including screening and referral procedures for associated physical conditions;

(5) the provision of psychiatric services, including the use of OASAS approved, validated screening instruments for co-occurring mental health conditions, and referral procedures for associated mental health conditions;

(6) a schedule of fees for services rendered;

(7) infection control procedures;

(8) cooperative agreements with other substance use disorder treatment providers and other providers of services that the resident may need;

(9) compliance with other requirements of applicable local, state, and federal laws and regulations, OASAS guidance documents and standards of care regarding:

(i) education, counseling, prevention, and treatment of transmissible infections, including tuberculosis, viral hepatitis, sexually transmitted infections, HIV, and other infectious diseases, in accordance with guidance from the Office. Regarding HIV, such education, counseling, prevention and treatment shall include condom use, testing, and pre- and postexposure prophylaxis and treatment;

(ii) the use of toxicology tests, in accordance with guidance issued by the Office;

(iii) medication and the use of medication for addiction treatment;

(iv) if acupuncture is provided as an adjunct to the services provided by the program, it must be provided in accordance with Part 830 of this Title.

(10) procedures for the ordering, procuring, and disposing of medication, as well as the selfadministration of medication;

(11) quality improvement and utilization review;

(12) clinical supervision and related procedures;

(13) procedures for emergencies;

(14) incident reporting and review in accordance with Part 836 of this Title;

(15) record keeping procedures which ensure that documentation is accurate, timely, prepared by appropriate staff, and in conformance with the federal confidentiality regulations contained in 42 Code of Federal Regulations Part 2;

(16) procedures by which required educational services are provided for school age children who are in residence as either an individual who is receiving treatment or as part of a family unit;

(17) procurement, storage, and preparation of food;

(18) record retention; and

(19) safety plan development.

(b) Emergency Medical Kit. Pursuant to Part 800 of this Title, all programs must maintain an emergency medical kit at each certified or funded location; such kit must include basic first aid items and naloxone emergency overdose prevention kits sufficient to meet the needs of the program. Programs must develop and implement a plan to have staff and residents, where appropriate, trained in the prescribed use of a naloxone overdose prevention kit such that it is available for use during all program hours of operation, in accordance with guidance from the Office.

(1) All staff and residents should be notified of the existence of the naloxone prevention kit and the authorized administering staff.

(2) Nothing in this Part shall preclude residents from becoming authorized in the administration of the naloxone emergency overdose prevention kit, provided, however, the program director must be notified of the availability of any additional authorized users.

(1) All programs shall maintain a patient with substance use disorder on approved medication, including those federal Food and Drug Administration (FDA) approved medications to treat substance use disorder, if deemed clinically appropriate and in collaboration with the patient's existing provider, and with patient consent, in accordance with federal and state rules and guidance issued by the Office. The program shall document such contact with the existing program or practitioner prescribing such medications.

(2) To facilitate access to full opioid agonist medication for patients who are maintained on such medication at the time of admission or who choose to start such medication during admission, the program shall develop a formal agreement with at least one Opioid Treatment Program (OTP) certified by the Office to facilitate patient access to full opioid agonist medication, if clinically appropriate. Such agreements shall address the program and the OTPs responsibilities to facilitate patient access to such medication in accordance with guidance issued by the Office.

(5) The program shall ensure that the patient's discharge plan includes an appointment with a treatment provider or program that can continue the medication post-discharge.

(d) A substance use disorder residential service shall have as its goals

(1) the improvement of functioning and development of coping skills necessary to enable the resident to be treated safely, adequately and responsibly in the least intensive environment; and

(2) the utilization of individualized treatment/recovery plans to support the maintenance of recovery and the attainment of self-sufficiency, including, where appropriate, the ability to be employed functionally, and the improvement of the resident's quality of life.

(e) All residential services shall provide, either directly or through referral to appropriate agencies, habilitative and rehabilitative services consistent with identified needs and treatment/recovery plans for services for individual residents. The following services shall be provided to residents as clinically indicated:

(1) Psychosocial Treatment. Each residential service shall make available to its residents individual, group and family services as appropriate that are evidence-based, person-centered, and trauma-informed.

(i) Group counseling sessions must be structured in size and duration to maximize therapeutic benefit for each participant. Program policies must include a process for determining group size, group purpose, monitoring resident experience, and assessing group efficacy. These sessions shall contain no more than fifteen residents.

(ii) These treatments must be evidence-based, person-centered, and trauma-informed, and individualized to the needs of the resident per the clinical assessment, in accordance with guidance and standards from the Office.

(iii) Evidence-based, person-centered, trauma informed individual, group and family counseling must be provided by a staff member operating within their scope of practice.

(iv) Family counseling services that include significant others are provided by program staff with appropriate training or by referral to community providers with this expertise.

(v) Peer support may occur in a peer group setting where the group is facilitated by residents who have greater experience or seniority within the service. Such counseling must be supervised directly by a clinical staff member in attendance.

(2) Supportive services. Each service shall ensure that a comprehensive and appropriate range of support services are available to each resident. Such services shall include, as needed and as appropriate, legal, medical, mental health, recovery, wellness, and social services, as well as vocational assessment and activities.

(3) Educational and childcare services. Each residential service that provides services to school-age children must make arrangements to ensure the availability of required educational and childcare services.

(4) Structured activity and recreation. Residents shall be afforded the opportunity to participate in recovery and wellness activities designed to develop skills to enable them to make effective use of leisure time as well as improve social skills, self esteem and responsibility.

(5) Orientation to community services. Each substance use disorder residential service shall provide orientation to, and instruction in identifying and obtaining needed community recovery and wellness services, including housing and other necessary case management services, to each resident.

(f) The certified bed capacity of each residential service may not be exceeded at any time except in cases of emergency and unexpected surges in demand where no alternative options are available, when the failure to accept individuals temporarily into the service would jeopardize their immediate health and safety, and where the excess of capacity would be time limited. Standards and procedures for such exceptions that are based upon the availability of adequate space, supplies and staff must be established with the prior approval of the Office.

(g) Food and nutrition.

(1) Intensive residential rehabilitation services shall ensure the availability of three meals each day to each resident and community residences shall ensure the availability of two meals each day to each resident. Such meals shall furnish sufficient nutrients and calories to meet normal needs as well as the special needs of persons in recovery. Supportive living services shall ensure the availability of adequate food to all participants.

(2) Intensive residential rehabilitation services and community residences shall have available snacks and beverages between meals. A qualified dietician, dietetic technician, nutritionist, or other appropriately qualified personnel working within their scope of practice shall provide menu planning services. Other suitable staff shall be responsible for the procurement of food supplies and the training and directing of food preparation and serving personnel. Copies of menus shall be kept on file for a period of one year.

(f) Safety plan development in accordance with guidance issued by the Office.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.4 Admission procedures

(a) Admission requirements for all programs.

(1) The admission assessment or decision to admit must include identification of initial services needed until the development of the treatment/recovery plan.

(3) The decision to admit an individual must be made by a clinical staff member who is a qualified health professional and must be documented by the dated signature (physical or electronic) of the qualified health professional and include the basis for admitting the individual.

(b) Level of care determination. If an individual is determined to meet criteria for substance use disorder residential services, a level of care determination shall be made by a clinical staff member who shall be provided clinical oversight by a qualified health professional. The level of care determination shall be signed and dated by the clinical staff member. The level of care determination shall be made promptly after the individual's first on site contact with the service.

(c) The level of care determination process must be in accordance with the governing authority's policy and procedures and incorporate the use of the OASAS Level of Care for Alcohol and Drug Treatment Referral Protocol (LOCADTR) or another Office-approved protocol.

(d) Prohibition against discrimination. Individuals that meet level of care criteria for residential services, in accordance with this Part, may not otherwise be denied admission in accordance with the provisions of Part 815 of this Title.

(e) Admission criteria. To be admitted for residential services, the individual must be determined to have recovery goals with the application of residential services and meet the admission criteria identified in this Part for the applicable level of service.

(f) If the individual does not meet admission criteria for residential services, unless the individual already is receiving substance use disorder treatment services from another provider, a referral to a service that can meet the individual's treatment needs shall be made. The reasons for denial of any admission to the residential service must be provided to the individual and documented in a written record maintained by the residential service.

(g) There must be a notation in the resident's record that they received a copy of the residential service's rules and regulations, including resident rights and a summary of federal confidentiality requirements, and a statement that notes that such rules were discussed with the resident, and that the resident indicated that they understood them.

(h) All prospective residents shall be informed that admission is on a voluntary basis and that a resident shall be free to discharge themselves from the service at any time. For prospective residents under an external mandate, the potential consequences for premature discharge shall be explained, including that the external mandate does not alter the voluntary nature of admission and continued treatment. This provision shall not be construed to preclude or prohibit attempts to persuade a resident to remain in the service in their own best interest.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.5 Post admission procedures

(a) As soon as possible after admission, if not completed already, all programs must:

(1) offer viral hepatitis testing (testing may be done by referral);

(2) offer HIV testing (testing may not be conducted without a resident's written informed consent in accordance with public health law and may be done on site or by referral). Residents on a regimen of pre- or post- exposure prophylaxis must be permitted to continue the regimen until consultation with the prescribing professional occurs.

(3) Screen for co-occurring mental health conditions and behavioral health risks, including suicide risk, using validated screening instruments approved by the Office.

(4) If clinically appropriate, all programs must:

(i) conduct a blood-based tuberculosis test (testing may be done on site or by referral with results as soon as possible after testing); residents with a positive test result should be referred for further tuberculosis evaluation;

a. an intradermal PPD may be placed in those circumstances when a blood-based tuberculosis test cannot be performed unless the patient is known to be PPD positive;

b. PPD placement may done on site with medical staff interpreting the results or by referral with results as soon as possible after testing

(ii) offer testing for other sexually transmitted infections (testing may be done on site or by referral);

(iii) offer immunizations either on site or by referral;

(iv) offer pregnancy tests to persons of childbearing potential (testing may be done on site or by referral);

(v) provide or recommend any other tests the examining physician or other medical staff member working within their scope of practice deems necessary including, but not limited to, an ECG, a chest X-ray or other diagnostic tests.

(5) As soon as possible after testing, programs must review and discuss any blood, urine, and skin test results, ECG results, chest X-ray results, or other diagnostic test results where applicable with the residents.

(6) Any significant medical issues, including risk of transmissible infections, identified prior to or after admission must be addressed in the treatment/recovery plan and documented in the resident's record. Treatment/recovery plans must include provisions for the prevention, care, and treatment of HIV, viral hepatitis, tuberculosis, sexually transmitted infections, and other infectious diseases when present. If a resident chooses not to obtain such care and treatment, the provider must have the resident acknowledge in writing that such care and treatment were offered and declined.

(b) Comprehensive evaluation.

(1) The goal of the comprehensive evaluation shall be to obtain information from the resident and other sources, including family members and significant others if possible and where appropriate, that is necessary to develop an individualized, person-centered treatment/recovery plan.

(2) No later than fourteen days after admission, staff shall complete the resident's comprehensive evaluation which shall include a written report of findings and conclusions addressing, at a minimum, the resident's:

(i) identifying and emergency contact information;

(ii) the source of referral, date of commencing service, and name of the clinical staff member with primary responsibility for the resident;

(iii) both recent and history of substance use;

(iv) substance use disorder treatment history;

(v) comprehensive psychosocial history, including, but not limited to the following:

(a) legal history;

(b) transmissible infection risk assessment (HIV, tuberculosis, viral hepatitis, sexually transmitted infections, and other transmissible infections);

(c) an assessment of the resident's individual, social and educational strengths and limitations, including, but not limited to, the resident's literacy level, daily living skills and use of leisure time;

(d) the resident's current medical conditions, current mental health conditions, past medical history, past mental health history, and an assessment of the resident's risk of harming self or others.

(3) The comprehensive evaluation must include diagnoses, including substance-related, medical, and psychiatric diagnoses in official nomenclature with associated diagnostic codes in the most recent version of the Diagnostic and Statistical Manual (DSM) or the International Classification of Diseases (ICD).

(4) The comprehensive evaluation shall bear the names of the clinical staff members who evaluated the resident and must be signed (physically or electronically) and dated by the qualified health professional responsible for the evaluation.

(c) Medical history and physical examination. Providers shall make every effort to execute appropriate consents to obtain and share medical information with the resident's other medical providers as appropriate.

(1) Residents who do not have an available medical history and have not had a physical examination performed within the last 12 months prior to admission must have a medical history recorded, and a physical examination performed and documented in the resident's record by a physician, physician assistant, or a nurse practitioner working within their scope of practice within forty five days after admission. The physical examination may include but shall not be limited to the investigation of, and if appropriate, screenings for infectious diseases; pulmonary, cardiac or gastrointestinal abnormalities; and physical, neurological, and/or psychological limitations or disabilities which may require special services or attention during treatment. The physical examination shall also include the following laboratory tests:

(i) complete blood count and differential;

(ii) routine and microscopic urinalysis;

(iii) if medically or clinically indicated, urine toxicology test;

(iv) pregnancy test for persons of childbearing potential;

(v) blood-based tuberculosis test

(a) an intradermal PPD may be placed in those circumstances when a blood-based tuberculosis test cannot be performed, with the results interpreted by the medical staff working within the scope of their practice unless the resident is known to be PPD positive;

(vi) any other tests the examining physician or other medical staff members working within their scope of practice deem to be necessary, including, but not limited to, an ECG, a chest X-ray, or other diagnostic tests.

(2) If the resident has a medical history available and has had a physical examination performed within 12 months prior to admission, or if the resident has been admitted directly to the residential service from another substance use disorder service authorized by the Office, the existing medical history and physical examination documentation may be used to comply with the requirements of this Part, provided that such documentation has been reviewed and determined to be current and accurate. Notwithstanding the forgoing, the following shall be offered regardless of a documented history within the previous twelve months: HIV and viral hepatitis testing.

(i) a focused medical history shall be taken and/or physical examination shall be performed and/or laboratory tests and other diagnostic tests shall be ordered if the examining physician, physician assistant, or nurse practitioner working within the scope of their practice determine that the elements of the existing medical history and/or physical examination and/or results of laboratory and other diagnostic tests require reevaluation based on the clinical judgment of the examining physician or other medical staff;

(ii) a focused medical history shall be taken and/or physical examination shall be performed and/or laboratory and other diagnostic tests shall be ordered if the resident has a physical complaint that was not addressed in the existing medical history and/or physical examination, and/or the resident has a new complaint that developed since the existing medical history was taken and/or existing physical examination was performed.

(3) Resident records shall include a summary of the medical history and the results of the physical examination, laboratory tests, and other diagnostic tests and shall also demonstrate that appropriate medical care, including mental health care, is recommended to any resident who needs such care.

(d) After the comprehensive evaluation is completed, a resident shall be retained in such treatment if the resident has a diagnosis of a substance use disorder in accordance with the most recent edition of the Diagnostic and Statistical Manual (DSM) or the International Classification of Diseases (ICD) and continues to meet the admission criteria required by this Part.

(e) If the comprehensive evaluation indicates that the resident needs services beyond the capacity of the residential service to provide either alone or in conjunction with another program, referral to appropriate services shall be made. Identification of such referrals and the results of those referrals to identified program(s) shall be documented in the resident record.

(f) If a resident is referred directly to the residential service from another service certified by the Office, or is readmitted to the same service within sixty (60) days of discharge, the existing level of care determination and comprehensive evaluation may be used, provided that the documentation has been reviewed and, if necessary, updated within fourteen (14) days of transfer.

(g) Treatment/recovery plan. A person-centered, initial treatment/recovery plan addressing the resident's individual needs must be developed within three days of admission, or readmission, to the substance use disorder residential service. The treatment/recovery plan shall be developed by the clinical staff member with primary responsibility for the resident ("the responsible clinical staff member") in collaboration with the resident and anyone identified by the resident as supportive of their recovery goals. This initial treatment/recovery plan must contain a statement which documents that the resident meets admission criteria for this level of care, identifies the assignment of a named clinical staff member with the responsibility to provide orientation to the resident, and includes a preliminary schedule of activities, therapies and interventions.

(h) A treatment/recovery plan, based on the admitting evaluation, shall be prepared within thirty days of development of the initial treatment/recovery plan to meet the identified needs of the resident, and shall take into account cultural and social factors as well as the particular characteristics, conditions and circumstances of each resident. For residents moving directly from one substance use disorder service to another, the existing treatment/recovery plan may be used if there is documentation that it has been reviewed and, if necessary, updated to reflect the resident's goals as appropriate.

(i) The treatment/recovery plan shall:

(1) be developed by the responsible clinical staff member(s) in collaboration with the resident and anyone identified by the resident as supportive of their recovery goals;

(2) be based on the admitting evaluations specified above and any additional evaluation(s) the resident has received or is determined to be required;

(3) specify measurable treatment goals for each problem identified;

(4) specify the objectives that shall be used to measure progress toward attainment of goals;

(5) include schedules for the provision of all services prescribed; where a service is to be provided by any other service or facility offsite, the treatment/recovery plan must contain a description of the nature of the service, a record that referral for such service has been made, the results of the referral, and procedures for ongoing care coordination and discharge planning;

(6) identify the responsible clinical staff for coordinating and managing the resident's treatment, who shall approve and sign (physically or electronically) such;

(7) reference any significant medical and mental health issues, including applicable medications, identified as part of the medical assessment process;

(8) include each diagnosis for which the resident is being treated;

(9) be reviewed, approved, signed (physically or electronically), and dated by the supervisor of the responsible clinical staff member within seven (7) days after the finalization of the treatment/recovery plan. If the supervisor of the responsible clinical staff member is not a qualified health professional, another qualified health professional must be designated to sign (physically or electronically) the plan; and

(10) Pregnancies. Treatment/recovery plans must include provisions for prenatal care for all residents who are pregnant or become pregnant. If a pregnant resident chooses not to obtain such care, the provider must have the resident acknowledge in writing that prenatal care was offered, recommended, and declined. The program should offer to develop a plan of safe care with the resident and anyone identified by the resident, and such offer should be noted in the resident's record.

(11) Transmissible infections. Treatment/recovery plans must include provisions for the prevention, care, and treatment of HIV, viral hepatitis, tuberculosis, and/or sexually transmitted infections when present. If a resident chooses not to obtain such care and treatment, the provider must have the resident acknowledge that such care and treatment were offered, recommended, and declined.

(j) Treatment according to the treatment/recovery plan. The responsible clinical staff member shall ensure that the treatment/recovery plan is included in the resident record and that all treatment is provided in accordance with the treatment/recovery plan.

(1) If, during the course of treatment, revisions to the treatment/recovery plan are determined to be clinically necessary, a multidisciplinary case conference will be held with the resident to determine what revisions to the treatment plan are needed to help the resident achieve their goals.

(k) Progress notes.

(1) Progress notes shall be written, signed (physically or electronically) and dated by the responsible clinical staff member or another clinical staff member familiar with the resident's care no less often than once every two weeks. Progress towards all treatment/recovery plan goals that are made during the two-week period must be documented in the applicable progress note.

(2) Progress notes shall provide a chronology of the resident's progress related to the goals established in the treatment/recovery plan and be sufficient to delineate the course and results of treatment. The progress notes shall indicate the resident's participation in all significant services that are provided.

(l) Resident deaths. If a resident dies while in active treatment any known details must be documented in the resident record.

(m) Discharge planning. Discharge planning shall begin upon admission and shall be considered part of the treatment/recovery planning process. The plan for discharge shall be developed by the responsible clinical staff member in collaboration with the resident and anyone the resident identifies as supportive of their recovery. If the resident is a minor, the discharge plan must also be developed in consultation with their parent or guardian, unless the minor is being treated without parental consent as authorized by Section 22.11 of the Mental Hygiene Law. Information pertaining to testing and treatment of sexually transmitted infections including HIV cannot be shared with the minor resident's parent or guardian without the resident's consent in accordance with applicable laws and regulations.

(1) A resident discharged from the program must be discharged for a documented reason. Residents discharged involuntarily must be discharged consistent with Part 815 of this Title.

(2) The discharge plan shall be based on the resident's self-reported confidence in their recovery and following an individualized recovery support plan, an assessment of the resident's home environment, suitability of housing, vocational/educational/employment status, and relationships with significant others to establish the level of social resources available to the resident and the need for services to significant others. In accordance with guidance and standards issued by the Office, the discharge plan shall include but not be limited to:

(i) identification of continuing substance use disorder services, medical and mental health services, rehabilitation, recovery, wellness, and vocational, educational and employment services the resident will need after discharge;

(ii) identification of specific providers of these needed services; and

(iii) specific referrals with appointment dates and times for any needed services;

(iv) identification of the type of residence that the resident will need after discharge;

(v) prescriptions and/or other arrangements to ensure access to medications including medications for addiction treatment for substance use disorders; and

(vi) overdose prevention education, naloxone education and training, and a naloxone kit or prescription for the resident and their family/significant other(s).

(n) No resident shall be discharged without a discharge plan that has been reviewed and approved by the responsible clinical staff member and the clinical supervisor or designee prior to the discharge of the resident. The portion of the discharge plan that includes referrals for continuing care shall be given to the resident upon discharge. Documentation detailing why a discharge plan was not provided to the resident prior to discharge must be placed in the resident record if the resident did not receive the plan.

(o) Discharge criteria. A resident shall be appropriate for discharge from the residential service and shall be discharged when they meet one or more of the following criteria:

(1) the resident has accomplished the goals and objectives which were identified in the treatment/recovery plan;

(2) the resident declines further care;

(3) the resident has been referred to other treatment that meets their individual needs and cannot be provided in conjunction with the residential service;

(4) the resident has been removed from the service by the criminal justice system or other legal process;

(5) the resident has received maximum benefit from the service; and/or

(6) the resident does not adhere to the written behavioral standards of the facility, provided that the resident is offered a referral and connection to another treatment program. A discharge for behavioral reasons with an offer of a referral and connection to another treatment program shall occur only after the program has utilized interventions to help the resident manage their behavior in a manner consistent with the written behavioral standards of the facility, and in accordance with guidance from the Office.

(p) A discharge summary which includes the course and results of treatment must be prepared and included in each resident's record within thirty (30) days of discharge.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.6 Record keeping

(a) Substance Use Disorder residential services must maintain individual records for each resident served. These resident records must, at a minimum, include the information required in this Part, as well as the source of referral, documentation of any case conferences or case reviews, reports of other evaluations and case consultations, medical orders, if applicable, and consent forms.

(1) the resident record shall include documentation that the resident and their family/significant other(s) were offered overdose prevention education, naloxone education and training, and a naloxone kit or prescription.

(i) documentation should include the reasons why overdose prevention education, naloxone education and training, and a naloxone kit or prescription were not offered, if applicable, or the reasons why the resident and their family members/significant other(s) declined overdose prevention education, naloxone education and training, and a naloxone kit or prescription.

(b) Resident records maintained by substance use disorder residential services are confidential and only may be disclosed consistent with the Health Insurance Portability and Accountability Act (HIPAA) and the federal regulations governing the confidentiality of patient/resident records as set forth in 42 Code of Federal Regulations Part 2 and other applicable law.

(c) Any medical and/or mental health treatments provided, including medications, shall be maintained in accordance with the requirements of federal and state law and approved policies and procedures.

(d) All medical or psychiatric services provided must be provided pursuant to the orders of a physician, physician assistant, or nurse practitioner working within their scope of practice.

(e) In the event that more than one substance use disorder service is offered by a facility, the resident record shall identify the service in which the resident is participating currently.

(f) Statistical information shall be reported to the Office as required and on the prescribed forms therefor.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.7 Quality improvement and utilization review

(a) Each substance use disorder residential service shall establish and implement a quality improvement plan and utilization review plan in accordance with this section. The utilization review requirement may be met by the following:

(1) the service may perform its utilization review process internally; or

(2) the service may enter into an agreement with another organization, competent to perform utilization review, to complete its utilization review process.

(b) The utilization review plan shall include procedures for ensuring that admissions are based on the program's admission criteria that retention and discharge criteria are met, and that services are appropriate. The utilization review plan shall consider each resident's need for continued treatment, the severity of the resident's substance use disorder(s), and the continued effectiveness of, and progress in, treatment.

(1) The quality improvement plan shall identify clinically relevant quality indicators that are based upon professionally recognized standards of care. This process shall include but not be limited to:

(i) no less than quarterly self-evaluations which may include an independent peer review process as discussed below, to ensure compliance with applicable regulations and performance standards;

(ii) findings of other management activities, including but not limited to; utilization reviews, incident reviews, and reviews of staff training, development and supervision needs;

(iii) surveys of resident satisfaction; and

(iv) analysis of treatment outcome data.

(2) The residential service shall prepare an annual report and submit it to the governing authority. This report shall document the effectiveness and efficiency of the service in relation to its goals and indicate any recommendations for improvement in its services to residents, as well as recommended changes in its policies and procedures.

(3) The purpose of independent peer review is to review the quality and appropriateness of residential services. The review is to focus on such services and the substance use disorder service system rather than on the individual practitioners. The intent of the independent peer review process is to improve continuously the residential services provided to individuals with substance use disorders.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.8 General staffing

(a) General Staffing Requirements.

(1) Former residents. Staff members shall not be former residents who recently have received treatment in the program and/or who have completed the program less than one year prior to their employment application, per guidance and standards issued by the Office.

(2) Adequate coverage. There shall be sufficient staff to ensure that there is adequate coverage of all critical tasks necessary to the safe care of residents in the program, per guidance and standards issued by the Office.

(i) Residents in the program shall not be asked or required to perform staff duties. For valid therapeutic reasons and when included in the treatment/recovery plan, residents may be asked to perform certain duties under the direct supervision of staff members, in accordance with guidance and standards issued by the Office.

(a) Residents shall not operate motor vehicles belonging to the program under any circumstances.

(b) Residents shall not serve as overnight awake staff.

(ii) Programs shall have arrangements with outside entities such as staffing agencies to ensure adequate staffing coverage during times of staff shortages.

(b) Staff may be assigned either specifically to the substance use disorder residential service or may be part of the staff of the facility within which the substance use disorder residential service is located. However, if these staff members are part of the general facility staff, they must have specific training and experience in the treatment of substance use disorders specific to the services provided. The percentage of time that each shared staff is assigned to the substance use disorder residential service must be documented.

(c) Staff Training. Each residential program must provide clinical supervision and ensure and document that all clinical staff have training plan based on individual employee needs. Such training may be provided directly or through outside arrangements and must be provided at least every one year. Training must be ongoing and documented in each employee's personnel record. Training in suggested relevant topics includes, but it not limited to:

(1) substance use disorders;

(2) evidence-based, trauma-informed, and person-centered individual, group and family counseling;

(3) child abuse and domestic violence;

(4) therapies and other activities supportive of recovery;

(5) co-occurring disorders;

(6) transmissible infections such as tuberculosis, sexually transmitted infections, viral hepatitis, HIV;

(7) infection control procedures;

(8) clinical supervision;

(9) quality improvement;

(10) vocational rehabilitation and employment preparation services;

(11) cultural diversity and cultural competence;

(12) tobacco use disorder;

(13) problem gambling;

(14) community based recovery supports and services;

(15) trauma-informed care;

(16) medications for addiction treatment;

(17) overdose prevention education;

(18) naloxone and naloxone administration; and

(19) agency policies and procedures.

(d) All substance use disorder residential services shall identify a clinical supervisor who shall be responsible for the day-to-day clinical operation of each residence and provide routine supervision for the staff. The clinical supervisor shall be a qualified health professional with at least three years of administrative and clinical experience in substance use disorder residential services.

(e) All substance use disorder residential services shall have sufficient clinical staff who have received training in, and are designated by the clinical supervisor to perform, the following tasks:

(1) evaluation of resident needs, development and implementation of individualized treatment/recovery plans for each resident, including individual, group and family counseling;

(2) participation with staff and, as necessary, other services and agencies to assure the development, management and implementation of comprehensive services for each resident, reflecting substance use disorder treatment needs and other habilitation or rehabilitation needs; and

(3) preparation and maintenance of case records for each individual resident.

(f) At least twenty-five per cent of all clinical staff members shall be qualified health professionals.

(g) Each residential service shall have a qualified individual designated as the Health Coordinator who will ensure the provision of education, risk reduction, counseling and referral services to all residents regarding HIV, tuberculosis, viral hepatitis, sexually transmitted infections, and other transmissible infections.

(h) There shall be sufficient staff available to ensure that the space and equipment of the service is clean and maintained in working order to minimize the need for treatment staff to perform nontreatment functions and to optimize operational efficiency.

(i) Clinical staff members who are not qualified health professionals shall have qualifications appropriate to their assigned responsibilities as set forth in the service's personnel policies and shall be subject to appropriate professional staff supervision and continuing education and training.

(j) In addition to staffing requirements of this Part, a residential service may utilize volunteers, students or trainees, on a salaried or non-salaried basis if such volunteers, students or trainees are provided close professional staff supervision and necessary didactic education from both internal and external sources.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.9 Additional requirements for intensive residential rehabilitation

(a) Admission criteria. In addition to the admission criteria applicable to residential services generally, an individual admitted to intensive residential rehabilitation services must meet the following criteria:

(1) The individual must have demonstrated an inability to participate in treatment outside of a twenty-four hour setting as indicated by one or more of the following:

(i) recent unsuccessful attempts at abstinence; or

(ii) substantial limitations in functional skills evidencing the need for extensive habilitation or rehabilitation in order to achieve lasting recovery in an independent setting.

(b) Clinical services. Intensive residential services are required to provide a minimum of forty hours per week within a structured therapeutic environment, consisting of the services identified in Section 819.4 of this Part and include the following:

(1) Rehabilitation and/or habilitation services.

(i) Each service shall ensure that a comprehensive and appropriate range of rehabilitative services are available to each resident. Such services include, but are not limited to:

(a) vocational services such as vocational assessment, job skills training, and employment readiness training;

(b) educational remediation services; and

(ii) These services may be provided directly by the service or by referral.

(iii) These services shall be reflected in the resident's comprehensive treatment/recovery plan and the resident's progress shall be documented in the resident's record.

(2) Personal, social, and community skills training and development. Residents shall receive training in community and adult living skills, as needed by each individual. Such skill development shall include, but is not limited to, social interaction and leisure activities.

(1) Each comprehensive plan, once established, must be reviewed and revised at least every three months thereafter by the responsible clinical staff member in consultation with the resident and reviewed and signed (physically or electronically) by the supervisor.

(2) A summary of the resident's progress in each of the specified goals shall be prepared and documented in the resident's record as part of the plan update.

(d) Staffing.

(1) Each residential facility shall have a full-time on-site Director whose duties shall include overseeing the day-to-day operations of the service.

(2) There shall be sufficient staff available to all residents at all times. During late evening and night shifts, there shall be at least one responsible staff person awake and on duty.

(3) In addition to the twenty four hour per day, seven day per week coverage, all intensive residential rehabilitation services shall have sufficient staff to ensure that counseling and rehabilitation services are available and responsive to the needs of each resident. An intensive residential rehabilitation service will have no less than one clinical staff member for every fifteen residents.

(4) For those residential rehabilitation services that serve children, at least one clinical staff member with training and experience in childcare shall be available.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.10 Additional requirements for community residential services

(a) Admission criteria. In addition to the admission criteria applicable to residential services generally, an individual admitted to community residential services must meet the following criteria:

(1) The individual must be homeless or must have a living environment not conducive to recovery.

(2) The individual must be determined to need outpatient treatment services and/or other support services such as vocational or educational services, in addition to the residential services provided by the community residence.

(b) Clinical services.

(1) In addition to the service elements required of all residential services, community residential services are required specifically to provide a structured therapeutic environment designed to facilitate the individual's progress toward recovery from a substance use disorder(s).

(2) The service shall maintain a focus on the development and improvement of the skills necessary for recovery.

(3) Specific services to be provided shall include the following:

(i) Each community residential service shall ensure that its residents have access to evidence-based, person-centered, and trauma-informed individual, group and family counseling services as needed and appropriate.

(ii) Each community residence shall have written referral agreements with one or more substance use disorder outpatient services to provide outpatient treatment services, as necessary.

(iii) The community residence shall ensure that such services are integrated with the recovery and wellness activities and services provided by the residence and incorporated in the individual's service plan.

(iv) Each community residence shall ensure that a comprehensive and appropriate range of rehabilitative procedures are available to each resident. Such services include but are not limited to:

(a) vocational services such as vocational assessments;

(b) job skills training, and employment readiness training;

(d) life, parenting and social skills training.

(4) Rehabilitation services may be provided directly by the service or by referral.

(5) Rehabilitation services shall be identified in the resident's comprehensive treatment/recovery plan.

(6) Personal, social, and community skills training and development. Residents shall receive training in community living skills and adult living skills as needed by each resident. Such skill development shall include, but is not limited to, a program of social interaction and leisure activities.

(1) Each treatment/recovery plan, once established, must be reviewed completely and revised at least every three months thereafter by the responsible clinical staff member in consultation with the resident and reviewed and signed by the supervisor.

(2) Any resident who is having challenges meeting agreed upon goals defined in the treatment/recovery plan shall be engaged in a case conference with members of the multidisciplinary team who will collaborate with the resident to create revisions to the treatment/recovery plan that meet the resident's treatment needs

(d) Staffing.

(1) Each community residence shall have a full time house manager responsible for the dayto-day operation of the service.

(2) There shall be staff on site twenty-four hours per day, seven days per week.

(3) All community residential services shall have sufficient staff to insure that supportive and rehabilitation services are available and responsive to the needs of each resident. In addition to the twenty-four hours a day coverage, community residential services will have at least one clinical staff member for every fifteen residents.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.11 Additional requirements for supportive living services

(a) Admission criteria. In addition to the admission criteria applicable to residential services generally, an individual admitted to a supportive living service must meet the following criteria:

(1) the individual requires support of a residence that provides a substance-free environment;

(2) the individual requires the peer support of fellow residents to maintain abstinence;

(3) the individual does not require twenty-four hour a day on-site supervision by clinical staff; and

(4) the individual exhibits the skills and strengths necessary to maintain recovery and readapt to independent living in the community while receiving the minimal clinical and peer support provided by this residential environment.

(b) Clinical services. There shall be scheduled clinical interaction at least one time per week designed to support residents in their efforts to readapt to independent living in the community while maintaining their recovery and wellness.

(c) Treatment/recovery plan review. Each treatment/recovery plan, once established, must be reviewed at least every six months thereafter, at which time the progress toward accomplishing the goals and objectives is reviewed. Any resident who is having challenges meeting agreed upon goals described in the treatment/recovery plan shall be engaged in a case conference where members of the multidisciplinary team will collaborate with the resident to create revisions to the treatment/recovery plan.

(d) Staffing. Supportive living services shall be staffed as follows:

(1) there shall be at least one full-time equivalent clinical staff member for each fifteen residents; and

(2) there shall be sufficient clinical staff members to ensure at least one visit to each supportive living service once per week, in order to assure the proper maintenance of the living site and that residents are maintaining an environment and schedule appropriate to and supportive of each resident's independent living; and

(3) there shall be sufficient clinical staff members to ensure that each resident is contacted personally at least once a week by staff to assure safety, adherence to the established service plan and support for daily independent living, through guidance, training, and assistance, as necessary.

History

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.12 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022

N.Y. Comp. Codes R. & Regs. Tit. 14 § 819.13 Sunset

(a) Notwithstanding any other provision of this Title, Part 819 will no longer be in effect after February 28, 2026. Operating certificates issued pursuant to this Part will have no force and effect after February 28, 2026.

(b) Providers that intend to continue providing the services currently authorized under this Part will need to obtain operating certificates under other applicable Parts of this Title, such as 14 NYCRR Part 820, on or before February 28, 2026.

History

Adopted New York State Register March 26, 2025/Volume XLVII, Issue 12, eff. 3/26/2025

Part 820 Residential Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.1 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the Commissioner to adopt standards including necessary rules and regulations pertaining to addiction services.

(b) Section 19.09 (b) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(c) Section 19.40 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for the provision of addiction services.

(d) Section 32.01 of the Mental Hygiene Law authorizes 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.

(e) Section 32.07 (a) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations to effectuate the provisions and purposes of article 32 of the Mental Hygiene Law.

(f) Article 27F of the Public Health Law defines the rules governing HIV testing in New York.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.2 Applicability

(a) This Part applies to any program certified by the office pursuant to this Part to provide residential services. These services are designed to help persons who lack a safe and supportive residential option in the community to achieve changes in their substance use disorder ("SUD") behaviors within a safe and supportive setting. Such services shall be strength based, person centered and trauma informed and may focus treatment on one or more of the following treatment/recovery elements: stabilization, rehabilitation, or community reintegration in congregate or scatter-site settings and may be provided directly on program site or through cooperative relationships with other service providers. Clinical services in residential programs are delivered on an individual or group basis in a variety of settings.

(b) Residential substance use disorder (SUD) services include medically necessary care and supportive services both on and off-site according to assessed needs including:

(1) assessment and clinical treatment/recovery plan or service plan development;

(2) skill development for coping with and managing symptoms and behaviors associated with SUDs;

(3) counseling to address a beneficiary's major lifestyle, attitudinal, and behavioral problems; and

(4) medication for addiction treatment for substance use disorder when medically necessary.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.3 Definitions

Unless otherwise indicated, the following terms shall be applicable to all programs certified pursuant to this Part.

(a) "Residential services" are 24/7 structured treatment/recovery services in a residential setting provided by office certified programs to persons recovering from substance use disorder. Services correspond to elements in the treatment/recovery process and are distinguished by the configuration of services, staffing patterns, degree of dysfunction of the individual served in each setting, and patient readiness to transition to a less restrictive program or element of treatment/recovery. Certified residential programs may provide residential services corresponding to one or more of the following elements of the treatment/recovery process:

(1) stabilization;

(2) rehabilitation;

(3) reintegration in congregate or scatter-site settings.

(b) "Stabilization" provides a safe environment in which a person may stabilize withdrawal symptoms, severe cravings, psychiatric and medical symptoms before referral or transition to another program or element of structured treatment/recovery. Stabilization requires the supervision of a physician and clinical monitoring.

(c) "Rehabilitation" provides a structured environment for persons whose potential for independent living is seriously limited due to significant functional impairment including social, employment, cognitive and ability to follow social norms that requires restructuring social supports and behaviors in order to develop sufficient skills; these persons require a course of rehabilitative services in a structured environment with staffing to provide monitoring and support and case management.

(d) "Reintegration" provides a community living experience in either congregate or scatter site settings with limited supervision and/or case management; persons appropriate for these services are transitioning to long term recovery from substance use disorder and independent living in the community.

(e) "Patient" or "Resident", for purposes of this Part, means an individual that is receiving services from a program certified pursuant to this Part.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.4 Assignment of services

(a) Programs will be certified for a maximum number of beds for a certified capacity. The level of care is attributed to the patient based on a patient-centered assessment and the OASAS level of care for alcohol and drug treatment referral protocol based on individual risk and resources. Programs will be certified pursuant to Part 810 of this Title for residential services and will have noted on the operating certificate each of the services (stabilization, rehabilitative and/or reintegration) approved for delivery at the certified residential site.

(b) Bed distribution will be determined by patient population demand. At any given time, the bed type is defined by the element of care to which the patient has been assigned. Distribution of bed types will not be fixed; however, the program must meet OASAS reporting requirements for transitions from one element of care to the next.

(c) All programs must submit an application with specific staffing structure, treatment approach, and other policies and procedures as requested by the Office for each element of residential services the program intends to provide. Upon approval of the application the service to be provided will be approved and designated on the residential program's operating certificate.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.5 General program standards

(a) Policies and procedures. The program governing authority must approve written policies, procedures, and methods governing the provision of services in compliance with office regulations including a description of each service provided. These policies, procedures, and methods must address, at a minimum:

(1) admission and discharge, including transfer and referral procedures;

(2) treatment/recovery plans, including service plans where appropriate;

(3) staffing including, but not limited to, training and use of student interns, peers and volunteers, and compliance with Part 805 of this Title;

(4) screening and referral procedures for associated physical or psychiatric conditions;

(5) a schedule of fees for services rendered;

(6) infection control procedures;

(7) cooperative agreements with other substance use disorder service providers and other providers of services a resident may need;

(8) compliance with other requirements of applicable local, state and federal laws and regulations, OASAS guidance documents and standards of care regarding, but not limited to:

(i) education, counseling, prevention and treatment of transmissible infections, including viral hepatitis, sexually transmitted infections and HIV; regarding HIV, such education, counseling, prevention and treatment shall include condom use, testing, pre-and post-exposure prophylaxis and treatment;

(ii) medication for addiction treatment;

(9) the use of alcohol and other drug screening tests, such as breath testing, urine screening;

(10) procedures for the ordering, procuring, and disposing of medication, as well as the self-administration of medication;

(11) quality improvement and utilization review;

(12) procedures for emergencies;

(13) incident reporting and review in accordance with Part 836 of this Title;

(14) record keeping;

(15) procedures whereby required educational services are provided for school age children who are in residence as either an individual who is receiving treatment or as part of a family unit;

(16) procurement, storage, preparation of food and nutritional planning;

(17) records retention. Case records must be retained for ten years after the date of discharge or last contact, or three years after the patient reaches the age of 18, whichever time period is longer.

(b) Emergency medical kit. All programs must maintain an emergency medical kit at each certified location; such kit must include basic first aid and naloxone emergency overdose prevention kits sufficient to meet the needs of the program. Programs must develop and implement a plan to have staff and residents, where appropriate, trained in overdose prevention education and naloxone education including the prescribed use of naloxone which shall be available for use during all program hours of operation.

(1) All staff and residents should be notified of the existence of the naloxone overdose prevention kit and the authorized administering staff.

(2) Nothing in this regulation shall preclude residents from becoming authorized in the administration of the emergency overdose prevention kit, provided however, the program director must be notified of the availability of any additional authorized users.

(c) Utilization review and quality improvement. All programs must have a utilization review process, a quality improvement committee, and a written plan that identifies key performance measures for that particular program.

(d) Medication for addiction treatment.

(1) All programs shall maintain a patient with substance use disorder on approved medication, including those federal Food and Drug Administration (FDA) approved medications to treat substance use disorder, if deemed clinically appropriate and in collaboration with the patient's existing provider, and with patient consent, in accordance with federal and state rules and guidance issued by the Office. The program shall document such contact with the existing program or practitioner prescribing such medications.

(2) To facilitate access to full opioid agonist medication for patients who are maintained on such medication at the time of admission or who choose to start such medication during admission, the program shall develop a formal agreement with at least one Opioid Treatment Program (OTP) certified by the Office to facilitate patient access to full opioid agonist medication, if clinically appropriate. Such agreements shall address the program and the OTPs responsibilities to facilitate patient access to such medication in accordance with guidance issued by the Office.

(5) The program shall ensure that the patient's discharge plan includes an appointment with a treatment provider or program that can continue the medication post-discharge.

(e) Services. All residential programs shall make available, either directly or through referral to appropriate agencies, the following services as clinically and programmatically indicated:

(1) Supportive services: availability of a range of support services appropriate to resident needs including legal, mental health, and social services, vocational assessment and counseling.

(2) Educational and child care services: availability of required educational and childcare services in each program which provides services to school-age children.

(3) Structured activity and recreation: opportunities for residents and family members, where appropriate, to participate in activities designed to foster effective use of leisure time, to improve social skills, develop self-esteem and encourage personal responsibility.

(4) Orientation to community services: orientation for each resident including advice and instruction in identifying and obtaining needed community services such as housing and other necessary case management services.

(5) Medication for addiction treatment, consistent with this Part and guidance issued by the Office.

(6) Overdose prevention education and naloxone education and training and a naloxone kit or prescription, consistent with guidance issued by the Office.

(f) Certified capacity. The certified bed capacity of each residential program may not be exceeded at any time except:

(1) in cases of emergency and unexpected surges in demand where no alternative options are available; and

(2) failure to temporarily accept individuals into the program would jeopardize their immediate health and safety; and

(3) where the excess of capacity would be time limited.

(g) Recordkeeping and reporting.

(1) All residential services must maintain individual case records for each resident served. These records must, at a minimum, include the information required in this Part, as well as the source of referral, documentation of any case conferences or case reviews, reports of other evaluations and case consultations, medical orders, if applicable, and consent forms.

(2) Statistical information shall be reported to the office as required and on the prescribed forms therefor.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.6 Staffing

(a) Any residential program of 10 beds or more shall have a full-time program director who is a qualified health professional as defined in Part 800 of this Title. The program director shall have at least five years of full-time work experience in SUD, or related treatment field, prior to appointment as program director. A residential program with fewer than 10 beds shall have a similarly qualified program director who shall serve on at least a part-time basis.

(b) General and clinical staffing.

(1) General and clinical staffing shall be on-site or on-call sufficient to meet the emergent needs of the resident population receiving services in a particular treatment element. Staff may be either specifically assigned to the residential service or may be part of the staff of the facility or program within which the residential service is located. However, if the staff is part of the general facility or program staff, they must have specific training and experience in the treatment of chemical use, abuse and dependence specific to the services provided.

(2) Applicable only to stabilization and rehabilitation services, staff "sufficient to meet the emergent needs of the resident population" shall include:

(i) registered nurse and weekend nursing staff sufficient to resident need, on-site daily and to supervise LPN;

(ii) LPN available on-site daily for support to residents for support and documentation of self-medication;

(iii) physician, nurse practitioner and or physician assistants to meet the medical assessment and treatment needs of each resident. Each service shall have identified a medical director whose qualifications and responsibilities are defined in Part 800 of this Title;

(iv) psychiatrist and/or psychiatric nurse practitioner to evaluate all residents who have a history of mental health disorder or who are exhibiting symptoms of a mental health disorder.

(v) LMSW/LCSW/LMHC or family therapist in sufficient numbers to provide psychotherapy to all residents who are in need of such services in a frequency sufficient to meet the assessed need;

(vi) clinical staff in sufficient numbers to serve as the primary counselors. Each resident shall be assigned a clinical staff member as his/her primary counselor to provide individual counseling and treatment/recovery plan preparation, monitoring and review;

(vii) CASACs, CASAC-T and other clinical and milieu staff in sufficient numbers to facilitate activities of daily living, community meetings, engagement, carry out of treatment planning in milieu; at least one CASAC available at all times to intervene to help provide therapeutic interactions to foster residents' social, cognitive and behavioral skill development. CASAC staff will provide supervision of milieu staff;

(viii) milieu staff all shifts in sufficient numbers available within the community to model and provide pro-social behavioral interventions at all times. Milieu staff are included in the treatment planning process and are aware of the treatment goals of each resident; they will carry out activities that will support goal attainment through the natural interactions within the milieu.

(ix) at least two staff per overnight shift, one of which must be a clinical staff member;

(x) vocational counselor;

(xi) case manager to develop the treatment/recovery plan and to meet regularly to identify needs and progress.

(3) All residential services shall have sufficient clinical staff that have been trained in, and are designated by the clinical supervisor to perform, the following tasks:

(i) evaluation of resident needs, development and implementation of individualized treatment/recovery plans for each resident, including individual, group and family counseling;

(ii) participation with staff and, as necessary, other services and agencies to assure the development, management and implementation of comprehensive services for each resident, reflecting both substance use issues and other habilitation or rehabilitation needs; and

(iii) preparation and maintenance of case records for each individual resident.

(4) There shall be sufficient staff available to ensure that the space and equipment of the service is clean and maintained in working order to minimize the need for treatment staff to perform non-treatment functions and to optimize operational efficiency.

(1) Each residential program must provide clinical supervision and ensure and document a plan for staff training based on individual employee needs. Subject areas appropriate for training shall be identified by the office.

(2) All residential services shall identify a clinical supervisor who shall be responsible for the day-to-day clinical operation of each residence and provide routine supervision for the staff. The clinical supervisor shall be a qualified health professional as defined in Part 800 of this Title with at least three years of clinical experience in substance use disorder treatment.

(3) Clinical staff members who are not qualified health professionals shall have qualifications appropriate to their assigned responsibilities as set forth in the service's personnel policies and shall be subject to appropriate professional staff supervision and continuing education and training.

(4) All clinical staff should be provided with and document training, including but not limited to, crisis interventions, working with special populations, medication assisted treatment, trauma informed care, quality improvement, agency policies and procedures. Additional subject areas appropriate for training may from time to time be identified by the Office.

(d) Health coordinator. Each residential service shall have a qualified individual designated as the health coordinator who will ensure the provision of education, risk reduction, counseling and referral services to all residents regarding HIV (including pre-and post-exposure prophylaxis), tuberculosis, viral hepatitis, sexually transmitted infections and other transmissible infections.

(e) Volunteers, peers, students or trainees. A residential service may utilize volunteers, peers, students or trainees, on a salaried or non-salaried basis if such volunteers, peers, students or trainees are provided close professional staff supervision and necessary didactic education from both internal and external sources, and comply with the requirements of Part 805 where appropriate.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.7 Admission, screening and assessment

(a) Admission procedures.

(1) Initial determination. An individual seeking residential services shall have an initial determination based upon face-to-face contact plus any other available records and made by a qualified health professional or other clinical staff under the supervision of a qualified health professional; such determination shall document in writing that:

(i) the individual appears to be in need of substance use disorder services; and

(ii) the individual appears to be free of serious transmissible infection which can be transmitted through ordinary contact; and

(iii) the individual appears to not need acute hospital care, acute psychiatric care, or other intensive services which cannot be provided in conjunction with residential services or would prevent him/her from appropriate participation in a residential service.

(2) Level of care determination. If the initial determination indicates the person is appropriate for residential services, a level of care determination shall be made by a clinical staff member supervised by a qualified health professional no later than 24 hours after the resident's first on-site contact with the program. The level of care report generated by the level of care protocol must be documented in the resident patient record. To be admitted for residential services at the appropriate level of care the individual must meet the level of care protocol criteria for the residential services and must be provided the services which match the resident's need for either stabilization, rehabilitative, or reintegration services.

(3) No individual may be denied admission to a program consistent with Part 815 of this Title.

(4) Decision to admit; notice to residents.

(i) If determined appropriate for the residential service, the individual shall be admitted. The decision to admit shall be included in the resident case record, dated and signed by a staff member who is a qualified health professional authorized by program policies to admit individuals; and

(ii) there must be a notation in the resident patient record that the resident received a copy of the residential service's rules and regulations, including resident rights, a summary of Federal confidentiality requirements, and a statement that such rules were discussed with the resident and the resident indicated that he/she understood them; and

(iii) all residents shall be informed that admission is on a voluntary basis and that a resident is free to discharge him or herself from the service at any time.

(iv) If the presenting individual is determined to be inappropriate for admission to the residential service, a referral to a more appropriate service must be made, unless the individual is already receiving substance use disorder services from another provider. Individuals deemed ineligible for admission must be informed of the reason.

(v) The admission assessment or decision to admit must contain a statement documenting the individual is appropriate for this level of care, identify the assignment of a named clinical staff member with the responsibility to provide orientation to the individual, and include a preliminary schedule of activities, therapies and interventions.

(b) Assessment.

(1) Prior to admission, all programs must:

(i) conduct a transmissible infection risk assessment (HIV, tuberculosis, viral hepatitis, sexually transmitted infections, and other transmissible infections);

(ii) conduct a toxicology screen as clinically appropriate or required by Federal law.

(2) As soon as possible after admission, for all residents, programs must:

(i) offer viral hepatitis testing; testing may be done on site or by referral;

(ii) offer HIV testing; testing may be done on site or by referral; individuals on a regimen of pre-or post-exposure prophylaxis must be permitted to continue the regimen until consultation with the prescribing professional occurs.

(3) If clinically indicated, as soon as possible after admission, all programs must:

(i) conduct an intradermal skin or blood based Tuberculosis test; testing may be done on site or by referral with results as soon as possible after testing; for patients with a positive test result, refer the patient for further tuberculosis evaluation.

(ii) offer testing for other sexually transmitted infections and referrals for immunization; testing may be done on site or by referral;

(iii) provide or recommend any other tests the examining physician or other medical staff member deems to be necessary including, but not limited to, an EKG, a chest X-ray, or a pregnancy test.

(4) As soon as possible after testing programs must explain any blood and skin test results to the resident.

(5) Any significant medical issues, including risk for transmissible infections, identified prior to or after admission must be addressed in the treatment/recovery plan and documented in the patient case record. Treatment/recovery plans must include provisions for the prevention, care and treatment of HIV, viral hepatitis, tuberculosis and/or sexually transmitted infections. If a resident refuses to obtain such care, the provider must have the resident acknowledge in writing that such care was offered but refused.

(1) If the resident has a medical history available and has had a physical examination performed within 12 months prior to admission, or if the resident is being admitted directly to the residential service from another office certified SUD program, the existing medical history and physical examination documentation may be used to comply with the requirements of this subdivision, provided that such documentation has been reviewed and determined to be current and accurate; such determination shall be dated and recorded in the resident record. Notwithstanding the foregoing, the following shall be offered to all patients regardless of a documented history within the previous twelve (12) months: HIV and HCV testing.

(2) Stabilization services.

(i) Within 24 hours after admission, programs providing stabilization services must complete a general assessment which identifies immediate problem areas, substantiates appropriate resident placement and is signed by a qualified professional. If withdrawal symptoms or other potentially life threatening behavior or conditions are present, the patient must be assessed immediately for safety by a medical staff person who is working within the scope of practice. A physician must be available by phone at all times to respond to immediate crises.

(ii) Within 24 hours after admission programs providing stabilization services must conclude a medical assessment and, if necessary, a full physical no later than 7 days after admission. All residents shall receive a physical exam by a physician, physician's assistant or nurse practitioner if they do not have available a medical history and no physical examination has been performed within the prior 12 months. Residents who have a medical history shall receive an evaluation within 7 days.

(3) Rehabilitation services. Within seven days after admission, programs providing rehabilitation services must conclude a medical assessment and, if necessary, a full physical no later than 45 days after admission. All residents shall receive a physical exam by a physician, physician's assistant or a nurse practitioner if they do not have available a medical history and no physical examination has been performed within the prior 12 months. Residents who have a medical history shall receive an evaluation within 21 days.

(4) Reintegration services.

(i) Residents admitted to reintegration services should have an identified primary care physician (PCP) in the community and have a physical exam if one has not been completed within the prior 12 months, or, if the resident is admitted to an outpatient SUD clinic or opioid treatment program (OTP), then within 30 days the reintegration program shall obtain the medical history, physical and treatment plan from the outpatient provider.

(ii) The physical examination shall include review of any physical and/or mental limitations or disabilities which may require special services or attention during treatment.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.8 Treatment/recovery plan development and review

(a) Programs providing residential services for any or all elements of care must:

(1) as soon as possible after admission, develop a patient-centered, interdisciplinary person centered treatment/recovery plan, which includes problem formulation and short-term, measurable treatment/recovery goals and activities designed to achieve those goals. This plan should be developed in collaboration with the resident; and

(2) review and revise, if necessary, the treatment/recovery plan or service plan in collaboration with the resident monthly (rehabilitation and reintegration) and weekly (stabilization) after admission and document accordingly.

(b) Treatment/recovery plan.

(1) Each resident must have a written person-centered treatment/recovery plan, or a service plan where appropriate, developed by the responsible clinical staff member and resident as soon as possible after admission. Standards for developing a treatment/recovery plan include, but are not limited to:

(i) for residents moving directly from one program to another, or being readmitted to the same program within 60 days of discharge, the existing treatment/recovery plan may be used if there is documentation that it has been reviewed and, if necessary, updated within 14 days of transfer;

(ii) if the resident is a minor, the treatment/recovery plan must also be developed in consultation with his/her parent or guardian unless the minor is being treated without parental consent as authorized by Mental Hygiene Law section 22.11.

(2) The treatment/recovery plan must:

(i) include each diagnosis for which the resident is being treated;

(ii) address resident identified problem areas specified in the admission assessment and concerns which may have been identified subsequent to admission, and identify methods and treatment approaches that will be utilized to achieve the goals developed by the resident and primary counselor;

(iii) identify a single member of the clinical staff responsible for coordinating and managing the resident's treatment who shall approve and sign (physical or electronic signature) such plan;

(iv) be reviewed and approved by the supervisor of the responsible clinical staff member within 10 days after the finalization of the treatment/recovery or service plan. If the supervisor of the responsible clinical staff member is not a qualified health professional (QHP), another QHP must be designated to sign (physical or electronic signature) the plan; and

(v) include schedules for the provision of all services prescribed; where a service is to be provided by any other service or facility off site, the treatment/recovery plan must contain a description of the nature of the service, a record that referral for such service has been made, the results of the referral, and procedures for care coordination and discharge planning.

(1) The responsible clinical staff member shall ensure that the treatment/recovery plan is included in the resident record and that all treatment and services are provided in accordance with the treatment/recovery plan.

(2) Progress notes.

(i) Progress notes shall be written, signed and dated by the responsible clinical staff member on a frequency appropriate to the element of care and consistent with policies and procedures and must include all clinical and milieu services delivered and the response of the resident to treatment. All individual and medical contacts for the purpose of assessing, diagnosing or treating the resident shall be documented in the resident record by the staff member delivering the service(s).

(ii) Progress notes shall provide a chronology of the resident's progress related to the goals established in the treatment/recovery plan and be sufficient to delineate the course and results of treatment/recovery.

(iii) The progress notes shall indicate the resident's participation in all significant services provided.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.9 Discharge

(a) Discharge planning.

(1) Discharge planning shall begin as soon as the resident is admitted. Individuals entering treatment should progress by meeting treatment milestones including: stabilization; engagement; goal setting; remission of substance use disorder; and attainment of goals supporting recovery. Individuals should be considered for discharge once they have stabilized, met remission criteria for substance use disorder, and attained the support necessary to support long term remission.

(2) An individual discharged from a program must be discharged for a documented reason. Individuals discharged involuntarily must be discharged consistent with Part 815 of this Title.

(3) Patients and significant other(s) shall be offered overdose prevention education and naloxone education and training and a kit or prescription for naloxone.

(4) Programs shall develop a safety plan in collaboration with the patient.

(b) Discharge criteria. A resident shall be appropriate for discharge from the residential service and shall be discharged when he or she meets one or more of the following criteria:

(1) the resident has accomplished the goals and objectives identified in the comprehensive treatment/recovery plan;

(2) the resident refuses further care;

(3) the resident has been referred to other appropriate treatment which cannot be provided in conjunction with the residential service;

(4) the resident has been removed from the service by the criminal justice system or other legal process;

(5) the resident has received maximum benefit from the service; and/or

(6) the resident is disruptive to the service and/or fails to comply with the reasonably applied written behavioral standards of the facility.

(1) A discharge plan must be developed in collaboration with the resident and any collateral person(s) the resident chooses to involve. The discharge plan shall specify needed referrals with appointment dates and times, all known medications (including frequency and dosage) and recommendations for continued care.

(2) The discharge plan must include an appointment with a community-based provider to continue approved medications for substance use disorder treatment.

(3) If the resident is a minor, the discharge plan must also be developed in consultation with his or her parent or guardian, unless the minor is being treated without parental consent as authorized by Mental Hygiene Law section 22.1; information pertaining to testing and treatment of sexually transmitted infections including HIV, cannot be shared with the minor patient's parent or guardian without the patient's consent, in accordance with applicable laws and regulations.

(4) No resident may be discharged without a discharge plan which has been reviewed and approved by the responsible clinical staff member and the clinical supervisor prior to the discharge. This requirement does not apply to residents who stop attending, refuse continuing care planning, or otherwise fail to cooperate. That portion of the discharge plan which includes referrals for continuing care must be given to the resident upon discharge.

(5) Residents should be discharged to the level of care indicated by the level of care protocol and may be moved between services within the residential program as long as the program is approved to provide the service and the resident meets the level of care for that service. Clinical staff should utilize the level of care protocol whenever a change in level of care is considered.

(6) No later than 30 days after discharge, a discharge summary must be finalized and included in each resident's record. The discharge summary must address and measure progress toward attainment of treatment goals.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.10 Additional requirements for stabilization in a residential setting

(a) Stabilization services are appropriate for residents who present with mild withdrawal or expected withdrawal and psychiatric symptoms that cause acute impairment; medical conditions, emotional or cognitive impairment that can be managed in a residential setting where medical staff are available on an on-call basis. Stabilization services may be provided by any certified provider of residential services designated by the office to provide stabilization services.

(1) Residential providers will be required to have medication management protocols, approved by the OASAS Medical Director, to qualify to provide stabilization services.

(2) All programs offering stabilization services shall have ancillary withdrawal and addiction medication management available as clinically indicated.

(b) Staffing.

(1) In addition to staffing required of all residential services pursuant to section 820.6 of this Part, stabilization services approved by the office must provide medical staff, as defined in Part 800 of this Title, on site or on-call, and staff available sufficient to meet the emergent needs of the resident population including any or all of the staff identified in Section 820.6(b)(2) of this Part. The percentage of time that each shared staff is assigned to the residential service must be documented.

(1) Medical assessment of the SUD symptoms and medical treatment of mild to moderate withdrawal symptoms, urges and cravings using a protocol approved by the OASAS Medical Director.

(2) Medical assessment of physical and mental health conditions and medical treatment to stabilize these conditions.

(3) Psychiatric assessment and medication management of co-occurring psychiatric conditions which can be managed within the residential setting.

(4) Psychosocial interventions which teach skills for coping with urges, craving, impulsive behavior and cognitive distortions in thinking, motivational interviewing techniques to engage the resident in treatment.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.11 Additional requirements for rehabilitation services in a residential setting

(a) Rehabilitation services are appropriate for individuals who do not have significant withdrawal symptoms, are free of severe cravings to use substances and, if present, psychiatric and medical conditions are stable. Individuals have functional impairment in cognitive, emotional regulation, social and role functioning.

(b) Staffing. In addition to staffing required of all residential services pursuant to section 820.6 of this Part, rehabilitation services approved by the Office must provide medical staff, as defined in Part 800 of this Title, on site or on-call, and staff available sufficient to meet the emergent needs of the resident population including any or all of the staff identified in section 820.6(b)(2) of this Part. The percentage of time that each shared staff is assigned to the residential service must be documented.

(1) individual, group and family counseling as appropriate to patient needs; provided by clinical staff as clinical staff are defined in Part 800 of this Title.

(i) a group therapy session shall contain no more than 15 persons;

(ii) family counseling services include services to significant others;

(iii) peer support may occur in a peer group setting where the group is facilitated by residents who have greater experience or seniority within the service. Such counseling must be directly supervised by a clinical staff member in attendance;

(iv) multi-family group counseling and psycho-education;

(2) medical assessment of physical and mental health conditions and medical treatment to enable the patient to manage chronic health and mental health conditions including treatment of physical health conditions that are routine;

(i) psychiatric assessment and medication management of co-occurring psychiatric conditions which can be managed within the residential setting;

(ii) psycho-social interventions which teach skills for coping with urges, craving, impulsive behavior and cognitive distortions in thinking, motivational interviewing techniques to engage the patient in treatment;

(iii) planned interactions with patients within the milieu intended to build social, emotional, and behavioral functioning including: increased empathy, successful social interactions, increase in self-efficacy, confidence, control over impulses, managing of urges and cravings to use and the skill in use of social supports available within the community.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.12 Additional requirements for community reintegration services in a residential setting

(a) Resident profile. Reintegration services are provided in a supervised congregate or scattered site setting to persons making the transition into the community. Persons appropriate for this service are stable in SUD, psychiatric and medical conditions and have adequate functioning in cognitive, emotional regulation, social and role functioning.

(b) Admission criteria. In addition to the admission criteria applicable to residential services generally, an individual admitted to a reintegration residential service must meet the following criteria:

(1) the individual must be homeless or must have a living environment not conducive to recovery; and

(2) the individual must be determined to need outpatient treatment services and/or other support services such as vocational or educational services.

(1) In addition to services required of all residential services, reintegration residential services are specifically required to provide a structured therapeutic environment designed to facilitate the individual's progress toward recovery from SUD and maintain a focus on the development and improvement of the skills necessary for recovery.

(2) Services to be provided shall include the following:

(i) each reintegration residential service shall ensure that its residents have access to individual, group and family counseling services as needed and appropriate;

(ii) each reintegration residential service shall have written referral agreements with one or more SUD outpatient services to provide outpatient treatment services, as necessary;

(iii) the reintegration residential service shall ensure that such services are integrated with the activities and services provided by the residence and incorporated in the individual's comprehensive service plan;

(iv) each reintegration residential service shall ensure that a comprehensive and appropriate range of services are available to each resident. Such services include but are not limited to:

(a) vocational services such as vocational assessment;

(b) job skills training, and employment readiness training;

(d) life, parenting and social skills training.

(3) Services may be provided directly by the service or by referral.

(4) Services shall be identified in the resident's service plan.

(5) Personal, social, and community skills training and development. Residents shall receive training in community living skills, personal hygiene and personal care skills as needed by each resident. Such skill development shall include, but is not limited to, a program of social interaction and leisure activities.

(3) Programs shall ensure access to medication for addiction treatment.

(d) Service plan review. In addition to the required periodic review, each service plan, once established, must be thoroughly reviewed and updated by the responsible clinical staff member in consultation with the resident whenever a change in services requires; all updates must be reviewed and signed by the supervisor.

(e) Staffing.

(1) Each reintegration residential service shall have a full time manager responsible for the day-to-day operation of the service.

(2) For community reintegration services in a congregate setting, there shall be staff on site twenty-four hours per day, seven days per week.

(3) All reintegration residential services shall have sufficient staff to insure that supportive services are available and responsive to the needs of each resident.

(4) For community reintegration services in a scattered site setting, there shall be sufficient clinical staff members to ensure at least one visit to each resident per week, in order to assure the proper maintenance of the living site and that residents are maintaining an environment and schedule appropriate to and supportive of recovery and independent living.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.13 Standards pertaining to Medicaid reimbursement

(a) Services must be delivered in accordance with the signed treatment/recovery plan, this Part and Part 841 of this Title.

(b) Non-covered services. Components that are not provided to, or directed exclusively toward the treatment of the Medicaid beneficiary, are not eligible for Medicaid reimbursement.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 820.14 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part which can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

Part 822 General Service Standards for Substance Use Disorder Outpatient Programs

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.1 Background

This Part contains requirements applicable to substance use disorder (SUD) outpatient programs certified, licensed, funded or otherwise authorized by the Office and the services provided by such programs. For purposes of this Part, addiction or substance use disorder is a chronic illness that can be treated effectively with counseling, approved medications used consistent with their pharmacological efficacy, and supportive services such as treatment for co-occurring disorders, medical and psychiatric services, vocational rehabilitation and family intervention and support. All services shall be strength-based, person-centered and trauma informed.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.2 Legal base

(a) Section 19.07 (c) of the Mental Hygiene Law (MHL) charges the Office with the responsibility to ensure that persons who have a substance use disorder and their families are provided with care and treatment that is effective and of high quality.

(b) Section 19.07(e) of the MHL authorizes the commissioner to adopt standards including necessary rules and regulations pertaining to substance use disorder treatment services.

(c) Section 19.09(b) of the MHL authorizes the commissioner to adopt regulations necessary and proper to implement any matter under their jurisdiction.

(d) Section 19.16 of the MHL requires the commissioner to establish and maintain, either directly or through contract, a central registry for purposes of preventing multiple enrollments in opioid treatment programs and provides medication dosage information during an emergency, when displaced patients may seek such treatment from an alternate program.

(e) Section 19.21(b) of the MHL requires the commissioner to establish and enforce regulations concerning the licensing, certification, and inspection of substance use disorder treatment services.

(f) Section 19.21(d) of the MHL requires the Office to establish reasonable performance standards for providers of services certified by the Office.

(g) Section 19.40 of the MHL authorizes the commissioner to issue operating certificates for the provision of substance use disorder treatment services.

(h) Section 22.07 (c) of the Mental Hygiene Law authorizes the commissioner to promulgate rules and regulations to ensure that the rights of individuals who have received, and are receiving, substance use disorder services are protected.

(i) Section 32.01 of the MHL authorizes 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 MHL.

(j) Section 32.05(b) of the MHL provides that a controlled substance designated by the commissioner of the New York State Department of Health (DOH) as appropriate for such use may be used by a prescribing professional to treat an individual with a substance use disorder pursuant to section 32.09(b) of the MHL.

(k) Section 32.07(a) of the MHL authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the MHL.

(l) Section 32.09(b) of the MHL provides that the commissioner may, once a controlled substance is approved by the commissioner of DOH as appropriate for such use, authorize the use of such controlled substance in treating an individual with a substance use disorder.

(m) Section 220.78 of the Penal Law affords limited protections from prosecution for persons seeking medical attention for accidental overdose.

(n) Section 3309 of the Public Health Law authorizes the DOH to establish standards for approval of any opioid overdose prevention program.

(o) Section 2781 of the Public Health Law defines the rules governing HIV testing in New York.

(p) 42 CFR Part 8 relates to the federal oversight and regulation of medication for addiction treatment for opioid use disorders.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.3 Applicability

(a) Part 822 applies to any person or entity organized in accordance with this Part, operating pursuant to the provisions of this Title and certified, funded or otherwise authorized by the Office to operate an outpatient treatment program. Except as indicated in subdivision (b) of this section, to provide services pursuant to this Part, each provider must obtain and maintain an operating certificate pursuant to Part 810 of this Title. Programs providing full opioid agonist treatment medications must additionally obtain approval from a federally-approved accrediting body, and all other applicable regulatory entities.

(b) The provision of treatment services within local correctional facilities shall not require certification by the Office; however, local correctional facilities must follow any other applicable state and federal regulations. The Office reserves the right to review protocols, delivery of services and discharge planning procedures of programs providing medications for substance use disorders within local correctional facilities.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.4 Savings and renewal clause

Any operating certificate issued by the Office prior to the promulgation of this Part for the operation of a program subject to regulations of the former Part 822 shall remain in effect until the term of such operating certificate has been renewed or such operating certificate is suspended or revoked through process of law, at which time any recertification of such program or renewal of such operating certificate shall be pursuant to the provisions of this Part.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.5 Definitions

As used in this Part, unless otherwise indicated, the following terms shall be applicable all programs providing outpatient services:

(a) "Accrediting Body" means an entity approved by the federal Substance Abuse Mental Health Services Administration (SAMHSA) to accredit all programs pursuant to 42 CFR Part 8.1 through 8.6 using opioid full agonist treatment medications.

(b) "Active treatment" is the period from pre-admission through discharge.

(c) "Admission assessment" is a service between a prospective patient and clinical staff for the purpose of determining a preliminary diagnosis, appropriateness for service, person-centered initial plan of treatment, including type(s) of services and frequency of services.

(d) "Ancillary withdrawal" is a service whereby patients in mild to moderate or persistent withdrawal receive symptom relief and/or addiction medications after an assessment of the level of withdrawal determined using a standardized assessment instrument. Providers must receive Office approved designation to provide this service.

(e) "Approved medications" means any medication approved by state or federal authorities for the treatment of substance use disorder.

(f) "Brief intervention" is a service between a prospective patient and clinical staff when screening results indicate at risk behavior. The brief intervention educates patients about their substance use, alerts them to possible consequences, and is intended to encourage healthier choices.

(g) "Brief treatment" is a service between an active patient and clinical staff and must include a target behavior or health need and an evidence-based or clinical practice upon which the treatment is based. Brief treatment may be used throughout the course of treatment to meet specific goals, motivate patients or support medicated supported recovery.

(h) "Central registry system" means the central registry established and maintained by the Office pursuant to section 19.16 of the Mental Hygiene Law.

(i) "Collateral person" is a member of a patient's family or household, significant others, or persons who are directly affected by regular interaction with the patient, or who have the capability to affect both the patient's substance use disorder and recovery.

(j) "Collateral visit" is a service between a clinical staff member and a collateral person for the purpose of providing an intervention in the service of the primary patient's progress in treatment.

(k) "Complex care coordination" is an ancillary service provided to a patient when a critical event occurs, or the individual's condition requires significant coordination with other service providers. Complex care coordination is distinguished from routine case coordination activities.

(l) "Continuing care treatment" is a treatment protocol that offers clinical support for the ongoing substance use management needs of patients. Patients have either completed the goals of active treatment and are discharged with referral to continuing care or opt for continuing care any time after discharge.

(m) "Group counseling" is a service between one or more clinical staff and multiple patients at the same time, to be delivered consistent with patient treatment/recovery plans, their development or emergent issues. Group counseling sessions must be structured in size and duration to maximize therapeutic benefit for each participant. Program policies must include a process for determining group size, group purpose, monitoring patient experience, and assessing group efficacy.

(n) "Individual counseling" is a service between a clinical staff member and a patient focused on the needs and goals of the patient to be delivered consistent with the treatment/recovery plan, its development or emergent issues.

(o) "Initial services or pre-admission services" are services prior to admission as the first step in developing a treatment/recovery plan, focusing on issues that need to be addressed to ensure successful engagement and admission into treatment and any other urgent or emergent issues. Initial/pre-admission services address priority goals based on presenting problem(s) identified during the patient's assessment and provide focus for the critical period of treatment engagement. Services which may be delivered preadmission will be identified by the Office.

(p) "Intensive outpatient services" (IOS) is an outpatient treatment service provided by a team of clinical staff for patients who require a time-limited, multi-faceted array of services, structure, and support to achieve and sustain recovery. Programs that offer intensive outpatient treatment must make available individual and group counseling, family counseling when appropriate, skills to mitigate reoccurrence, and coping skills training, including as appropriate, Dialectical and Behavioral Therapy (DBT), Motivational Enhancement Therapy (MET), Cognitive Behavioral Therapy (CBT) and increased connections to recovery supports and other evidence based practices as proven effective in meeting patient needs.

(q) "Medication administration and observation" is face-to-face administration or dispensing of a medication by medical staff, to be delivered in conjunction with observation of the patient prior to the administration and after, as appropriate to the medication and patient's condition.

(r) "Medication for addiction treatment" (MAT) means treatment of substance use disorder i.e., substance use disorder and concomitant conditions with medications requiring a prescription or order from an authorized prescribing professional with counseling and behavioral therapies, as clinically appropriate.

(s) "Medication management" is a service with a prescribing professional for one of the following purposes:

(1) evaluation, monitoring, observation or dosage change to a patient's medication;

(2) a comprehensive medication review of a new patient or any patient who requires a more extensive review; or

(3) the induction of a patient to a new medication requiring a period of patient observation.

(t) "Naloxone emergency overdose prevention kit" means a kit as prescribed pursuant to state law and is used to reverse an opioid overdose.

(u) "Opioid medical maintenance" is a designated Office-based opioid treatment ("OBOT") program limited to patients who meet specific criteria as described in this Part.

(v) "Opioid taper" means a medical treatment protocol that, after a period of stabilization, utilizes approved medications in gradually decreasing doses to the point of 0 milligrams (no dose) followed by continuing care treatment as described in this Part, or discharge.

(w) "Patient" for purposes of this Part is an individual including a significant other who meets with clinical and/or peer staff for the purpose of engagement, assessment or treatment. "Active patient" means a patient who is admitted to a program and has an active treatment/recovery plan.

(x) "Peer support service" is provided by a peer advocate as defined in Part 800 of this Title. Peer support services are services for the purpose of outreach for engaging an individual to consider entering treatment, reinforcing current patients' engagement in treatment, and connecting patients to community-based recovery supports consistent with treatment/recovery and discharge plans.

(y) "Person centered care"is a collaborative care approach to individualized treatment resulting in the development of treatment/recovery plan goals and service provision that is respectful of the patient's needs and choices. It is guided by patients and produced in partnership with care providers for treatment and recovery. Person and family centered care planning is strength-based and focuses on individual capacities, preferences and goals. It supports patient preferences and a recovery orientation and is developed within the professional responsibilities of providers and care teams.

(z) "Progress note" is documentation of each service delivered and serves as the treatment/recovery plan as it evolves to support person centered goals and ongoing service and care planning. Progress notes identify patient's clinical status, type of services, and may also include updates to goals, methods of treatment and types of services provided and includes challenges and achievements identified.

(aa) "Screening" is a pre-admission service with a clinical staff member for the purpose of identifying patients who have problems with substance use. Screening results must be shared by the clinical staff with the patient.

(ab) "Specialized opioid services"are those not defined in this Part and are generally research-oriented in nature. Such specialized services shall be reviewed and approved by the Office prior to implementation and operation in accordance with Office policy, procedures, and requirements.

(ac) "Substance use disorder outpatient rehabilitation services"(outpatient rehabilitation services) are services offered by programs which have been certified to provide outpatient rehabilitation services; such services are designed to assist individuals with more chronic conditions as further defined in this Part who are typically scheduled to attend the outpatient rehabilitation program three to five days per week for at least two hours per day.

(ad) "Substance use disorder outpatient program"is an Office certified program which provides outpatient services that assist individuals with a substance use disorder and their family members and/or significant others and may also provide outpatient rehabilitation services and/or intensive outpatient services (IOS); and sites where addiction medications are administered to treat opioid use disorder, as well as other SUDs following one or more medical treatment protocols as defined in this Part. This term encompasses medical and comprehensive support services including counseling, educational and vocational rehabilitation. The term also includes the Narcotic Treatment Program (NTP) as defined by the federal Drug Enforcement Agency (DEA) in 21 CFR Section 1301 . An NTP or Opioid Treatment Program (OTP) requires federal and state approval.

(ae) "Transfer"is an intra-program function (i.e., between outpatient and outpatient rehabilitation within the same provider or between different Program Reporting Units (PRUs) of the same provider); and may also be an inter-program function (i.e., between two different providers).

(af) "Treatment/recovery plan" is the plan developed by clinical staff with the patient and based on the admission assessment and initial services and includes goals, type and frequency of services and methods. Treatment/recovery plans shall be regularly updated using progress notes.

(ag) "Visit" means one or more services provided to a patient and/or collateral person on a single day.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.6 Standards pertaining to Medicaid reimbursement

(a) For purposes of Medicaid billing, a claim may be submitted for services delivered to a patient, collateral person, or significant other (regardless of whether such significant other is connected to a current patient with a diagnosed substance use disorder).

(b) Only services delivered by an Office-certified or authorized program are eligible for Medicaid reimbursement under this Part.

(d) In order to qualify for reimbursement, each service must be documented as a covered Medicaid service in accordance with the following:

(1) the service must meet the standards established in this Part;

(2) the service must meet the standards established in Part 841 of this Title;

(3) the service must be provided by appropriate staff as required in this Part.

(e) The following services alone do not constitute a service eligible for Medicaid reimbursement:

(1) nutrition services;

(2) educational and vocational services;

(3) recreational and social activity services;

(4) group meetings, workshops or seminars that are primarily informational or organizational;

(5) acupuncture.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.7 General program standards

(a) Policies and procedures. The program sponsor must approve written policies, procedures, and methods governing the provision of services to patients in compliance with Office regulations including a description of each service provided. These policies, procedures, and methods must address, at a minimum:

(1) admission and discharge, including specific criteria relating thereto, as well as transfer and referral procedures;

(2) treatment/recovery plans;

(3) services to be provided by contract or subcontract including methods for coordinating service delivery and a description of core groups offered and procedures for coordinating group, individual, and family treatment;

(4) a schedule of fees for services rendered;

(5) compliance with other requirements of applicable local, state and federal laws and regulations, OASAS guidance documents and standards of care regarding, but not limited to:

(i) education, counseling, prevention and treatment of communicable diseases, including viral hepatitis, sexually transmitted infections and HIV; regarding HIV, such education, counseling, prevention and treatment shall include condom use, testing, pre- and postexposure prophylaxis and treatment;

(ii) the use of alcohol and other drug screening and toxicology tests; and

(iii) medication and the use of medication for addiction treatment; and

(iv) the use of a problem gambling screen approved by the Office.

(6) infection control procedures;

(7) staffing, including but not limited to, training and use of student interns, peers and volunteers;

(8) Waiting lists. Programs must maintain a waiting list of eligible prospective patients. When an opening is available programs must make at least one good faith attempt to contact the next prospective patient on the waiting list.

(9) Certified Capacity. In determining certified capacity for an OTP, such programs may:

(i) Exclude patients confirmed to be maintained on appropriate medications in a hospital, nursing home or correctional facility and who are expected to return to the program within 12 months upon discharge from such facility;

(ii) Programs may include patients previously deemed ineligible for admission for reasons other than behavioral concerns;

(iii) Exclude patients maintained on buprenorphine or naltrexone; in continuing care not receiving medication; or, enrolled in auxiliary withdrawal management; and

(iv) Exclude a significant other(s).

(10) Each program must maintain a policy on toxicology.

(b) Emergency medical kit.

(1) All programs must maintain an emergency medical kit at each certified location; such kit must include basic first aid and [at least one] naloxone emergency overdose prevention kits in a quantity sufficient to meet the needs of the program. Programs must develop and implement a plan to have staff trained in the use of a naloxone overdose prevention kit such that it is available for use during all program hours of operation.

(2) All staff and patients should be notified of the existence of the naloxone overdose prevention kit and the authorized administering staff.

(3) Nothing in this regulation shall preclude patients from becoming authorized in the administration of the naloxone emergency overdose prevention kit, provided however, the program director must be notified of the availability of any additional authorized users.

(c) Utilization review and quality improvement. All programs must have a utilization review process, a quality improvement committee, and a written plan that identifies key performance measures.

(d) Continuous services. Programs must develop necessary procedures, including disaster plans, to assure continuous services in emergencies or disruption of operations in accordance with Office guidelines and accreditation standards.

(e) Community relations. Programs must develop and implement a community relations plan that describes actions responsive to reasonable community needs; such plans may include, but not be limited to, formation of community patrols to ensure that patients are not loitering, and formation of a Community Committee that meets regularly to discuss actions to improve community relations.

(f) Required services. Each program must directly provide the following:

(1) admission assessment, including, if clinically indicated, a screen for problem gambling;

(2) treatment/recovery planning and review;

(3) trauma-informed individual and group counseling;

(4) medication for addition treatment;

(5) toxicology testing (not required for significant others unless clinically indicated):

(i) Each program must conduct toxicology tests to be determined by the provider as clinically appropriate provided, however, at least eight random toxicology tests must be conducted per year for each patient in an OTP.

(ii) Each program must review and discuss with the patient the toxicology result.

(iii) Laboratories used for toxicology testing must be approved by the New York State Department of Health or, in the City of New York, the New York City Department of Health and Mental Hygiene.

(iv) Each program must use a method approved by the Food and Drug Administration (FDA) and Center for Substance Abuse Treatment (CSAT) for toxicology testing.

(6) post-treatment planning;

(7) medication administration and observation;

(8) medication management;

(9) brief intervention and brief treatment;

(10) collateral visits;

(11) complex care coordination;

(12) outreach;

(13) peer support services;

(14) overdose prevention education and naloxone education and training; and

(15) safety plan development.

(g) Optional Services. Each program may, at its option, directly provide any of the following:

(1) intensive outpatient services (IOS);

(2) ancillary withdrawal (requires Office approved designation); or

(3) other services which may be identified by the Office from time to time.

(h) Problem gambling. A program that treats an individual and/or a significant other who has been affected by problem gambling, shall be designated and provide such services in accordance with Part 857 of this Title.

(i) Medication for Addiction Treatment (MAT) for Substance Use Disorder (SUD)

(1) The program shall maintain a patient with substance use disorder on approved medication, including those federal Food and Drug Administration (FDA) approved medications to treat substance use disorder, if deemed clinically appropriate and in collaboration with the patient's existing provider, and with patient consent, in accordance with federal and state rules and guidance issued by the Office. The program shall document such contact with the existing program or practitioner prescribing such medications.

(2) To facilitate access to full opioid agonist medication for patients who are maintained on such medication at the time of admission or who choose to start such medication during admission, the program shall develop a formal agreement with at least one Opioid Treatment Program (OTP) certified by the Office to facilitate patient access to full opioid agonist medication, if clinically appropriate. Such agreements shall address the program and the OTPs responsibilities to facilitate patient access to such medication in accordance with guidance issued by the Office.

(5) The program shall ensure that the patient's discharge plan includes an appointment with a treatment provider or program that can continue the medication post-discharge.

(j) Telehealth. Any services authorized to be delivered via telehealth shall be provided consistent with Part 830 of this Title.

(k) Staffing. Each program must provide clinical supervision and ensure and document a plan for staff training based on individual employee needs. Subject areas appropriate for training shall be identified by the Office. Staffing requirements include:

(1) Clinical Director. Each program must have a qualified health professional designated as the clinical director working within their scope of practice who is responsible for the daily activities and supervision of services provided. Such person must have at least three years of fulltime clinical work experience in the substance use disorder field, at least one year of which must be supervisory, prior to appointment as clinical director. A program which is part of a provider comprised of multiple health, mental health or substance use disorder treatment programs may share this position provided clinical director responsibilities have been delegated to another qualified staff member and shared to the extent such assignment is sufficient to meet patient need.

(2) Medical Director. Each program must have a Medical Director as defined in Part 800 of this Title.

(3) Medical staff, as defined in Part 800 of this Title.

(i) The medical staff must be trained in emergency response treatment and must complete regular refresher courses/ drills on handling emergencies.

(ii) A physician, registered physician's assistant or nurse practitioner must provide on-site, or through telepractice, coverage as adequate and necessary.

(iii) In an OTP, anytime such program is open, and a physician is not present, a physician must be available for consultation, prescribing, dispensing and to attend to any emergency situation.

(iv) An OTP must have at least the equivalent of two full-time on-site nurses for up to 300 patients, one of whom shall be a registered nurse. Programs approved to serve more than 300 patients must have one additional full-time nurse for each additional 150 patients or part thereof. A nurse must always be present when medication is being administered.

(4) Health coordinator. Each program must designate a health coordinator to assure the provision of education, risk reduction, counseling and referral services to all patients regarding HIV (including pre- and post-exposure prophylaxis), tuberculosis, viral hepatitis, sexually transmitted infections, and other communicable diseases.

(5) Counselors. In every program there must be an adequate number of counselors sufficient to carry out the objectives of the program and to assure the outcomes of the program are addressed. The Office will review factors in determining whether the program's outcomes are being addressed, which may include but shall not be limited to:

(i) retention of patients in treatment;

(ii) patients' stability and progress in treatment.

(6) Full-time staffing requirements. There must be at least one full-time Credentialed Alcoholism and Substance Abuse Counselor (CASAC); and there must be at least one full-time qualified health professional, as defined in Part 800 of this Title, qualified in a discipline other than substance use disorder counseling, that maintains a professional license other than a CASAC.

(7) Qualified health professional requirements. At least 50 percent of all clinical staff must be qualified health professionals. CASAC trainees (CASAC-T) may be counted towards satisfying the 50 percent requirement; however such individuals may not be considered qualified health professionals for any other purpose under this Part. Clinical staff members who are not qualified health professionals must have qualifications appropriate to their assigned responsibilities as set forth in the personnel policies of the program and must be subject to appropriate staff supervision and continuing education and training.

(8) Each program must notify the Office of any change in medical director, on-site physician(s), or program sponsors (pursuant to Part 810 of this Title).

(l) Other staffing requirements.

(1) If other specialized services are directly provided by the program, staff must be appropriately qualified to provide such services.

(2) Volunteers and student interns. In addition to staffing requirements of this Part, a program may utilize volunteers and student interns. Such volunteers or student interns must receive supervision, training, or didactic education consistent with their assigned tasks and the services they are expected to provide.

(3) Certified Recovery Peer Advocates (CRPA). CRPAs, as defined in Part 800 of this Title, must be supervised by a clinical staff member who is credentialed or licensed and participate in a training plan appropriate to their needs. CRPAs may provide peer support services based on clinical needs as identified in the patient's treatment/recovery plan.

(4) Security staff. Programs may employ security staff who are not clinical staff and may not be involved in clinical services and must receive training on confidentiality of patient information and adhere to such federal laws.

(5) All clinical staff should be provided training related to, including but not limited to, crisis interventions, dealing with special populations, quality improvement, agency policies and procedures. Additional subject areas appropriate for training may from time to time be identified by the Office.

(6) A clinical or non-clinical staff person shall be identified to serve as the program's Lesbian, Gay, Bisexual, Transgender, Questioning/Queer (LGBTQ) liaison.

(m) Program hours of operation. Each program must operate at least five (5) days per week providing structured treatment services in accordance with treatment/recovery plans. Programs should make every effort to provide services outside of normal business hours, including evening and weekend hours. OTPs must be open at least six (6) days per week and must provide flexible dosing hours that meet patient needs, providing access for patients with varying schedules. Patients must be given an appointment for all visits including medication dispensing. Appointment times must allow for program operation with limited wait times.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.8 Patient Records/Treatment Planning

(a) General requirements for all patient records. All programs must maintain a patient record (either electronic or paper) for each patient who receives services. The patient record must demonstrate a chronological pattern of delivered medical and treatment services consistent with the patient's prior treatment history, if any, and the patient's evolving treatment/recovery plan, updated regularly through progress notes. The patient record shall also include:

(1) the source of referral, if applicable;

(2) a notation that, prior to the first treatment visit, the patient received a copy of the program's rules and regulations, including patient's rights (Part 815) and a summary of the federal confidentiality requirements, that such rules and regulations were discussed with the patient, including their ability to designate individuals to be notified in case of an emergency and that the patient indicated he/she understood them;

(3) any clinical or non-clinical documentation or determination applicable to the delivery of medical and treatment services for a patient and/or supporting the patient's evolving treatment/recovery plan;

(4) the individual treatment/recovery plan and all reviews and updates thereto through progress notes;

(5) signed releases of consent for information;

(6) documentation of services in accordance with this Part;

(7) documentation of level of care determinations using the OASAS level of care protocol for admission and level of care transition;

(8) transition planning, including medication list, circumstances/reason, and referrals made;

(9) if the patient is a minor being treated without parental consent, documentation establishing that the provisions of Mental Hygiene Law section 22.11 have been met.

(10) information and documentation required in screening and admission;

(11) all lab results;

(12) current approved medication doses and justification for any changes; and

(13) include an order sheet that is displayed in the patient record and signed (physical or electronic signature) by any medical professional licensed under the appropriate state law authorizing such change and noting the date for each approved medication order and dose change.

(b) Admission requirements applicable to all programs:

(1) Diagnosis.

(i) Unless otherwise authorized, the program must document that the individual is determined to have a substance use disorder based on the criteria in the most recent version of the Diagnostic and Statistical Manual (DSM) or the International Classification of Diseases (ICD).

(ii) For a significant other, the program must document that the individual is determined to have a diagnosis consistent with the presenting concerns related to a close relationship with someone who has a substance use disorder.

(2) If an individual has been referred by an Office approved Driving While Intoxicated (DWI) provider/practitioner, any assessment created by such provider which meets the requirements of this section may be used to admit the patient.

(3) Documentation of admission must:

(i) include the level of care determination;

(ii) include an assessment, initial services and diagnosis that form the basis of the treatment/recovery plan;

(iii) be made by a clinical staff member who is a qualified health professional and must be documented by the dated signature (physical or electronic) of the qualified health professional working within their scope of practice and include the basis for admitting the patient; and

(iv) be approved by the dated signature (physical electronic) of a physician, physician's assistant, nurse practitioner, licensed psychologist, or licensed clinical social worker.

(4) Patients being admitted to an OTP must be documented to have a minimum 12-month opioid use disorder (OUD) accompanied by a physical evaluation. A comprehensive physical examination must be completed within fourteen days, or otherwise in accordance with federal rules.

(5) If the presenting individual is determined to be inappropriate for admission to the program, a referral and connection to a more appropriate service must be made, unless the individual is already receiving substance use disorder services from another provider. Individuals deemed ineligible for admission must be informed of the reason.

(6) No individual that meets level of care criteria may be denied admission to a program consistent with the provisions of Part 815 of this Title.

(7) All prospective patients must be informed that admission to a program is on a voluntary basis and a prospective patient is free to discharge themselves from the service at any time. For prospective patients under an external mandate, the potential consequences for premature discharge must be explained, including that the external mandate does not alter the voluntary nature of admission, continued treatment, and toxicology screening.

(8) A significant other may be admitted to a program regardless of whether the individual with whom they are associated is in treatment. A significant other is not appropriate for admission to an outpatient rehabilitation service.

(1) As soon as possible after admission, if not already complete, every patient must be:

(i) offered viral hepatitis testing; testing may be done on site or by referral;

(ii) offered HIV testing; testing must be conducted with patient consent in accordance with public health law and may be done on site or by referral; individuals on a regimen of pre- or post-exposure prophylaxis, must be permitted to continue the regimen until consultation with the prescribing professional occurs;

(iii) screened for co-occurring mental health conditions and behavioral health risk including suicide risk using validated screening instruments approved by the Office.

(2) If clinically indicated, all programs must:

(ii) offer testing for other sexually transmitted infections; testing may be done on site or by referral;

(iii) provide or recommend any other tests the examining physician or other medical staff member deems to be necessary including, but not limited to, an EKG, a chest X-ray, or a pregnancy test.

(3) As soon as possible after testing programs must explain or ensure that the provider has explained, any blood and skin test results to the patient.

(4) For those patients who have not had a physical examination within one year prior to admission, each such patient must either be assessed by a member of the medical staff to ascertain the need for a physical examination or referred for a physical examination. For those patients who have had a physical examination within one year prior to admission, or for those patients being admitted directly to the outpatient program from another substance use disorder service authorized by the Office, the existing medical history and physical examination documentation may be used to comply with the requirements of this subdivision, provided such documentation has been reviewed by a medical staff member and determined to be current. Notwithstanding the foregoing, HIV and viral hepatitis testing shall be offered regardless of a documented history within the previous twelve months. OTPs are exempt from this requirement but must provide physical examinations in accordance with federal rules.

(d) Additional admission requirements for outpatient rehabilitation services. In addition to the requirements of paragraph (a) of this section, an individual must also meet the criteria in Section 822.10 of this Part to be admitted to an outpatient rehabilitation service.

(e) Additional admission requirements for OTPs.

(1) The decision to admit a prospective patient for treatment is finalized on the date of administration or prescription of the initial approved medication dose after satisfaction of all applicable requirements of this Part. Prospective patients with a chronic immune deficiency or prospective patients who are pregnant and have a current opioid or past opioid dependency must be screened and admitted on a priority basis. No person under the age of 16 may be admitted without the prior approval of the Office. The following requirements must be met for an individual to be admitted:

(2) In order to administer the first medication dose, a patient must have an in-person evaluation, including a physical evaluation, to determine that they have had a physiological dependence on opioids for at least the previous 12-month period, and must diagnose and document such, provided however:

(i) a prospective patient may be admitted who voluntarily completed treatment in another program without confirming current opioid dependence if the program confirms that the:

(a) voluntary completion of treatment occurred within the previous 24 months; and

(b) previous treatment lasted at least 6 months;

(ii) a prospective patient who is less than 18 years of age may be admitted if such patient has had at least two prior treatment episodes within a 12-month period and a dependence on opioids;

(iii) a prospective patient who resided in a correctional or chronic care facility for at least one month, if assessed within 6 months after release or discharge, may be admitted if the prospective patient would have been eligible for admission prior to residing in such facility.

(3) A physician, or other practitioner with federal approval, must ensure that prior to first dose, the prospective patient is provided and signs (physical or electronic signature) an informed written consent to participate in an opioid treatment program, which shall include notice of the risks and benefits of a prescribed medicine.

(4) Each OTP must issue a photo-identification card to each patient within two weeks after admission; patients may carry the identification or, at the patient's option, have the identification maintained at the program.

(f) Readmissions to OTPs. Programs need not repeat admission procedures for any patient who is being re-admitted within three (3) months of discharge and need not repeat a medical and laboratory examination if the patient received a medical and laboratory exam within the previous year, provided:

(1) The patient's prior medical records must be combined with the new medical records within thirty days of the patient's readmission;

(2) each program must immediately readmit patients who were previously discharged from that program:

(i) after a stay of 30 days or more in a hospital, nursing home, or other health care facility, if such patient is still being maintained on an approved medication, and/or meets the eligibility requirements when released; or

(ii) after an extended incarceration (including KEEP), if clinically appropriate when such patient is released.

(g) Transfers between OTPs.

(1) Each program must develop procedures regarding the transfer of patients which must ensure that the program shall:

(i) not deny a reasonable request for a temporary or permanent transfer;

(ii) not include "temporary-to-permanent" conditions, whereby a patient is temporarily provided guest medication and then evaluated as to whether or not the OTP will permanently admit, unless otherwise authorized by the Office;

(iii) regard transferred patients as continuing in treatment by incorporating their length of treatment and treatment/recovery plans from the referring program;

(iv) send or receive the reason for the transfer and provide the most current medical, counseling, and laboratory information within fourteen (14) days of the request. Receipt of this information is not required prior to acceptance and the failure to receive this information will not preclude acceptance; and

(v) continue the patient's approved medication dosage and take-home schedule unless new medical or clinical information requires medical staff to review and subsequently order a change.

(2) Each program must develop procedures for the temporary transfer of patients which must ensure that the:

(i) transferring programs forward information on fees, contact person, time and dose of medication to the receiving program;

(ii) Program sends or receives prior to the patient's arrival the reason for the temporary transfer including temporary dates and approved medication dose;

(iii) Program shall not deny a reasonable request for a temporary transfer;

(iv) transferring program remains responsible for the patient's overall treatment. The receiving program may deliver any necessary service after consultation with the transferring program; and

(v) receiving program prescribing professional must write an order to continue the patient's medication dose and take-home schedule.

(h) Treatment/recovery plan.

(1) Each patient must have a written person-centered treatment/recovery plan developed by the clinical staff person with primary responsibility for the patient, in collaboration with the patient and anyone identified by the patient as supportive to recovery goals. The treatment/recovery plan begins with the assessment incorporated into the patient record and is regularly updated with progress notes.

(i) Minor patients: If the patient is a minor, the treatment/recovery plan must also be developed in consultation with the patient's parent or guardian unless the minor is being treated without parental consent as authorized by Mental Hygiene Law section 22.11.

(ii) Immediate transfer: For patients moving directly from one program to another, the existing treatment/recovery plan may be used if there is documentation that it has been reviewed and, if necessary, updated to reflect patient goals as appropriate.

(2) The treatment/recovery plan must:

(i) include the assessment, which identifies each diagnosis for which the patient is being treated;

(ii) be incorporated into the patient record through regular progress notes, including initial services to be offered prior to completion of the initial assessment;

(iii) address patient goals as identified through the assessment process and regularly updated as needed through progress notes;

(iv) identify a single member of the clinical staff responsible for coordinating and managing the patient's treatment who shall approve and sign (physical or electronic signature) such plan;

(v) reference to any significant medical and psychiatric issues, including all medications, by acknowledging review of medical/psychiatric assessment and progress notes, as well as coordination with mental and psychiatric providers; and

(vi) be reviewed and approved by the clinical staff person responsible for developing the plan, the patient and the clinical supervisor.

(i) Continuing review of treatment/recovery plans. The treatment/recovery plan must be reviewed through the ongoing assessment process and regular progress notes.

(j) Progress Notes. Progress notes are intended to document the patient's clinical status. Service delivery should be documented in the patient record through regular progress notes that include, unless otherwise indicated, the type, content, duration and outcome of each service delivered to or on behalf of a patient, described and verified as follows:

(1) be written and signed (physical or electronic signature) by the staff member providing the service;

(2) indicate the date the service was delivered;

(3) record the relationship to the patient's developing treatment goals described in the treatment/recovery plan; and

(4) include, as appropriate and relevant, any recommendations, communications, or determinations for initial, continued or revised patient goals and/or treatment.

(k) The program's multidisciplinary team, as defined in Part 800 of this Title, shall meet on a regularly scheduled basis for the purpose of reviewing a sample of cases for the purpose of clinical monitoring of practice. This meeting shall be documented as to date, attendance, cases reviewed and recommendations.

(l) Pregnancies. Treatment/recovery plans must include provisions for pre-natal care for all patients who are pregnant or become pregnant. If a pregnant patient refuses or fails to obtain such care, the provider must have the patient acknowledge in writing that pre-natal care was offered, recommended, and refused. The program should also offer to develop a plan of safe care with the patient and anyone identified by the patient, such offer should be noted in the patient record.

(m) Communicable disease. Treatment/recovery plans must include provisions for the prevention, care and treatment of HIV, viral hepatitis, tuberculosis and/or sexually transmitted infections when present. If a patient refuses to obtain such care, the provider must have the patient acknowledge in writing that such care was offered, recommended, and refused.

(n) Transfers. If patients are transferred between a SUD outpatient program and outpatient rehabilitation services within the same provider, a single patient record may be maintained provided that it includes clinical justification for the transfer, the effective date of the transfer and a revised treatment/recovery plan, if necessary, signed (physical or electronic signature) by a clinical staff member and their supervisor.

(o) Confidentiality. Patient records maintained by the program are confidential and may only be disclosed consistent with the Health Insurance Portability and Accountability Act (HIPAA) and the federal regulations governing the confidentiality of patients' records as set forth in 42 CFR Part 2 and other applicable law.

(p) Records retention. Patient records must be retained for ten (10) years after the date of discharge or last contact, or three (3) years after the patient reaches the age of eighteen, whichever time period is longer.

(q) Patient deaths. If a patient dies while in active treatment any known details must be documented in the patient record.

(r) Transition or discharge criteria.

(1) Patients having no contact or intent to continue accessing services from a program should be discharged after a period not exceeding sixty (60) days unless reason for continuing treatment past that period is identified and documented in the patient record.

(2) Individuals entering treatment should progress by meeting treatment milestones including: stabilization; engagement; goal setting; and attainment of patient-centered goals. Individuals should be considered for transitions to the community or another level of care once they have stabilized and attained the support necessary to support their goals. If an individual leaving treatment expresses a preference for a level of care or services that preference should be included in the patient record.

(3) Individuals who are discharged involuntarily must be discharged consistent with Part 815 of this Title.

(4) Transition plan.

(i) A transition plan must be developed in collaboration with the patient and any collateral person(s) the patient chooses to involve. Such plan shall specify needed referrals with appointment dates and times, all known medications (including frequency and dosage) and recommendations for continued care.

(ii) The transition plan shall include an appointment with an appropriate provider to continue access to approved medications to treat the patient's substance use disorder.

(iii) If the patient is a minor, the plan must also be developed in consultation with their parent or guardian, unless the minor is being treated without parental consent as authorized by Mental Hygiene Law section 22.11; information pertaining to the testing and treatment of sexually transmitted infections cannot be shared with the minor patient's parent or guardian without the patient's consent, in accordance with applicable laws and regulations.

(5) No patient may be discharged without a plan which has been previously reviewed and approved by a clinical staff member and the clinical supervisor. This requirement does not apply to patients who stop attending, or otherwise fail to cooperate, or refuse continuing care or OBOT planning. That portion of the transition plan which includes referrals for continuing care must be given to the patient prior to leaving the program. The patient, and their family/significant other(s), shall be offered overdose prevention education and training, and a naloxone kit or prescription.

(s) Continuing Care. Individuals may be admitted to continuing care when they require a less intensive amount of support and services and there is a documented clinical need for ongoing clinical support to maintain gains made in treatment.

(1) The purpose of continuing care is to provide ongoing disease management services including management of life stressors, urges and cravings, mood and interpersonal relationships and to maintain gains made in treatment.

(2) Individuals in continuing care may receive counseling or peer services, rehabilitative support services including case management and medication management services as needed.

(3) Patients receiving OTP services are not appropriate for continuing care as defined herein.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.9 Additional locations

(a) A certified provider of an outpatient program may operate at one or more additional locations with the approval of the commissioner pursuant to Part 810 of this Title. For purposes of this section, an "additional location" is a provider site providing outpatient addiction treatment services which reports to a primary certified program for its operation, administration and supervisory activities.

(b) The provisions of this section shall not apply to certified providers of outpatient rehabilitation services.

(c) Opioid Treatment Programs must comply with federal statutes, regulations and guidance regarding the development of additional locations and are not subject to the provisions of 822.7(f) of this Chapter.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.10 Additional requirements for substance use disorder outpatient rehabilitation services

(a) These requirements are in addition to those contained in 822.7 of this Chapter and other sections applicable to all programs.

(b) As defined in 822.5 of this Part, outpatient rehabilitation services for individuals with more chronic conditions emphasize development of basic skills in prevocational and vocational competencies, personal care, nutrition, and community competency. The individual must have an inadequate support system and either substantial deficits in interpersonal and functional skills or health care needs requiring attention or monitoring by health care staff. These services are provided in combination with all other clinical services provided by programs. It is expected that services will be provided three to five days per week for at least two hours per day.

(d) Staffing. There must be at least one full-time equivalent counselor or therapist for every 20 patients receiving outpatient rehabilitation services. If volunteers or student interns are used, they may not be counted in the counselor-to-patient ratio. In addition to the staffing required in section 822.7 of this Part, the following additional staff members are required:

(1) at least one half-time therapeutic recreation therapist or occupational therapist or vocational specialist, certified as a rehabilitation counselor or qualified health professional with one year of experience and/or training in providing recreation, occupation and/or rehabilitation services; and

(2) at least one part-time nurse practitioner, registered physician's assistant, or registered nurse, or a licensed practical nurse supervised by a registered nurse employed by the governing authority.

(e) If a program is providing outpatient rehabilitation services, the following services must be available either directly or through written agreements:

(1) socialization development;

(2) skill development in accessing community services;

(3) activity therapies; and

(4) information and education about nutritional requirements, including but not limited to planning, food purchasing, preparation and clean-up.

(f) A provider of outpatient rehabilitation services must assure the availability of one meal to each patient who receives outpatient rehabilitation services.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.11 Additional requirements for opioid treatment programs

(a) Central registry system. Each such program must participate in the central registry system established and maintained by the Office to prevent a patient's simultaneous enrollment in more than one such program and ensure accurate dispensing of medication in accordance with federal regulations. Each such program must:

(1) initiate a clearance inquiry to the central registry system by submitting all required information prior to admitting a patient;

(2) report all admissions, transfers, and discharges immediately to the central registry system;

(3) verify with the central registry system that the prospective patient is not presently enrolled in another such program and this verification must be documented in the clinical record; a program may not admit an applicant who is participating in another such program; and

(4) report any other information deemed necessary by the Office to comply with state and federal laws and regulations.

(b) Medication administration.

(1) A physician must determine a patient's initial medication dose and schedule of administration and document such orders in the patient's record. Another designated practitioner, such as a nurse practitioner or physician's assistant may determine a patient's initial medication dose and schedule of administration if a federal waiver has been approved.

(2) A prescribing professional may report such orders to the registered or licensed medical personnel supervising medication administration; any subsequent change in approved medications, dose or schedule must similarly be reported to the pharmacy or to the medical staff and documented in the record before administration. The prescribing professional may issue verbal orders in emergencies only and must document such orders in writing within seventy-two (72) hours.

(3) Patients must be properly stabilized with a therapeutic dose of approved medications; a therapeutic dose means an amount sufficient to maintain comfort for at least twenty-four (24) hours, alleviate opioid craving and stop continued opioid use. Split medication doses require prior Office approval.

(4) If any medical staff member observes any condition or behavior on the part of a patient that may contraindicate a regularly scheduled dose of medication, such staff member must contact the prescribing professional immediately and advise of the patient's condition which may warrant an approved medication delay, withholding or adjustment. The prescribing professional must:

(i) approve any medication delay, withholding or adjustment; and

(ii) provide follow up consistent with emergency verbal orders as otherwise required by this section.

(1) Each patient must be on a visit schedule that is most appropriate to clinical need, conducive to treatment progress, and supportive of rehabilitation. A prescribing professional may reduce a patient's visit schedule, when clinically indicated, to accommodate patient changes in need, progress, or rehabilitation.

(2) Each patient's take-home schedule must comply with the federal regulatory time in treatment requirements (42 CFR Part 8.12), unless there is a clinical justification that takes into consideration the federal eight (8) point criteria, as to why the person is not stable enough to be granted the applicable take home schedule. The Medical Director must review and confirm the appropriateness for take-home medication. Federal time in treatment criteria do not apply to the provision of buprenorphine or naltrexone.

(3) Any patient may receive a single take-home dose for a day that the clinic is closed for business, including Sundays and State and Federal holidays.

(4) Such determinations shall be documented in the patient's medical record. Time-in-treatment requirements do not apply to buprenorphine take-home medication per federal rules.

(5) No medications shall be dispensed to patients in short-term detoxification treatment or interim maintenance treatment for unsupervised or take-home use.

(6) Notwithstanding the requirements of this subdivision, a provider may require a patient to visit the program when concerned with diversion of medication. When this occurs the patient shall be required to bring in all remaining take-home doses. Remaining doses must match the prescribed schedule.

(7) Holidays. Notwithstanding the requirements of this subdivision, a patient may be provided with extra medication without prior Office approval i f the patient's next regular visit falls on a legal or program holiday. Designation of a program holiday that is not a federal holiday must be approved annually by the Office at least thirty (30) days in advance.

(8) Exceptional circumstances. Notwithstanding the requirements of this subdivision, a prescribing professional, based on reasonable clinical judgment, may order up to thirty (30) takehome doses at any one time if a patient is unable to conform to the applicable mandatory schedule requirements due to exceptional circumstances such as illness, personal or family crisis, travel, employment, medical, or hardship, and the prescribing professional determines the patient is also responsible in handling approved medication. Such order shall not be a permanent schedule change. The prescribing professional must immediately document in the patient record the reasons for the order.

(9) Release of medication to designated third party. Program medical staff may release medication to a designated third party other than the patient only when the patient is physically unable to attend the program. The decision to permit such release to a designated third party must be based on the clinical judgment of the prescribing professional and with the consent of the patient, both of which must be documented in the patient's record. All designated third parties must also receive prior Office approval.

(10) Patients readmitted to a program after an approved voluntary discharge may be granted the same take-home schedule at the time of discharge provided all criteria other than length of treatment are satisfied.

(d) Medication security.

(1) Access to controlled substances, including approved medications, shall be limited to authorized persons in accordance with applicable state and federal law. The areas where controlled medication stocks are maintained, dispensed, or administered must be physically separated and secure from patient areas in accordance with applicable state and federal law.

(2) Immediately after administration, drug containers must be purged by rinsing, inversion, or by an acceptable alternative method that must effectively prevent the accumulation of residual medication. Containers used in the program or for take-home medications must be in child resistant packaging, may not be reused and must be destroyed. Each program must assure patients' take-home bottles and used containers are disposed of properly. Patients should return take-home bottles before receiving any subsequent take-home medication.

(3) Any theft or loss of approved medications must be immediately reported in accordance with applicable state and federal law.

(e) Residential programs providing opioid full agonist treatment medications. Such a residential program shall:

(1) comply with all applicable requirements of this Part;

(2) comply with all requirements of this Title applicable to substance use disorder residential services;

(3) not dispense take-home medications to any patient; and

(4) include material and schedules for development and review of treatment/recovery plans as required by regulations applicable to substance use disorder residential services, rather than the requirements of this Part.

(f) Opioid taper.

(1) MAT is the standard of care for OUD; however an opioid taper may be appropriate in limited clinical situations and upon patient request.

(2) Voluntary Taper. Each program must provide an opioid taper at the program or arrange for taper at another program or in a facility approved to provide tapering as is medically and clinically appropriate:

(i) Patients may request a voluntary taper at any time and may discuss reasons and circumstances with program staff who must provide clinical feedback regarding patient readiness. No reasonable request shall be denied;

(ii) Each program must administer a voluntary taper at a pace tailored to the patient's individual needs, based on clinical judgment, medical evaluation, patient input and feedback at the start of the taper and continuously throughout.

(g) Opioid medical maintenance (OMM).

(1) An OMM program requires federal and state approval. Patients admitted to OMM must meet specific criteria including:

(i) four (4) years of continuous treatment in a program providing opioid full agonist treatment;

(ii) three (3) years of no substance use including alcohol;

(iii) three (3) years of no criminal involvement;

(iv) three (3) years of continuous gainful employment or productive activity;

(v) three (3) years of emotional stability;

(vi) intent to continue maintenance treatment; and

(vii) verified stability in the Prescription Monitoring Program ("PMP").

(2) The individual patient record for a patient in OMM must be updated at least monthly and toxicology tests and/or a check of the PMP must be conducted as clinically indicated.

(3) The 30-day medication supply may be dispensed in dry tablet form in a single bottle.

(4) An OMM patient must return to a program when, in the prescribing professional's clinical judgment, the patient needs maintenance treatment services.

(5) An OMM program has no Office-certified capacity.

(h) Specialized opioid services. Specialized opioid services are those not defined in this Part and are generally research-oriented in nature. Such specialized services shall be reviewed and approved by the Office prior to implementation and operation in accordance with Office policy, procedures, and requirements.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

N.Y. Comp. Codes R. & Regs. Tit. 14 § 822.12 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

Part 823 Outpatient Chemical Dependency Services For Youth Programs And Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.1 Background and intent

This regulation contains requirements applicable to rehabilitative health and behavioral health services available to children/youth, up to age twenty-one (21) and their families through the federal Early Periodic Screening, Diagnostic and Treatment (EPSDT) program in New York. These services are hereby referred to by the state agencies as Children and Family Treatment and Support Services (CFTSS).

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.2 Applicability

The provisions of this Part are applicable to all programs and providers certified, funded or otherwise authorized by the Office who seek certification or designation by the Office to offer rehabilitative health and behavioral health services for children/youth as such services are defined in this Part.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.3 Legal base

(a) Section 19.07 (e) of the Mental Hygiene Law authorizes the Commissioner of the Office of Alcoholism and Substance Abuse Services (Commissioner) to adopt standards including necessary rules and regulations pertaining to addiction services.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.4 Definitions

For purposes of this Part, the following terms are defined:

(a) "Certified Recovery Peer Advocate - Family Peer Advocate" (CRPA-FPA) means a parent or caregiver with lived experience who is authorized by the Office.

(b) "Certified Recovery Peer Advocate - Youth Peer Advocate" (CRPA-YPA) means a self-identified consumer recipient of behavioral health services, aged 18-28, who is authorized by the Office.

(c) "Child/youth" or "children/youth" means a person or persons aged twenty-one (21) and under for purposes of the services as defined in this Part.

(d) "Children's Behavioral Health and Health Services Transformation Medicaid State Plan Provider Manual" (Manual) means the guide describing six children's health and behavioral health benefits approved pursuant to the Medicaid State Plan (the Manual is incorporated by reference pursuant to Part 800 of this Title).

(e) "Children's services" means health and behavioral health services as defined in 18 NYCRR Part 507 and authorized by the NYS Department of Health to be provided by certified treatment providers pursuant to rules and regulations of the Office.

(f) "Crisis plan" means a plan developed in consultation with the child/youth, their family and their crisis intervention provider; it may also be shared with other providers with the family's consent. The crisis plan is developed to reduce or manage crisis related symptoms, promote healthy behavior, address safety concerns, and prevent or reduce the risk of harm or diffusion of dangerous situations.

(g) "Early Periodic Screening and Diagnostic Treatment" (EPSDT) means the provision of comprehensive and preventive health and behavioral health services for children/youth under age twenty-one (21) enrolled in Medicaid. EPSDT is intended to ensure that such children/youth receive appropriate preventive, dental, health, behavioral health, developmental and specialty services.

(h) "Evidence based practice" (EBP) means an intervention for which there is rigorous scientific evidence demonstrating their effectiveness or efficacy in improving child/youth outcomes.

(i) "Family" means the primary caregiving unit and is inclusive of the wide diversity of primary caregiving units such as birth, foster and adoptive parents or a self-created unit of people with significant attachment to one another.

(j) "Licensed practitioner of the healing arts" (LPHA) mean s an individual who is licensed and practicing within the scope of their state license and may recommend rehabilitative services.

A Licensed practitioner of the healing arts includes:

(1) A Registered Professional Nurse;

(2) Nurse Practitioner;

(3) Psychiatrist;

(4) Licensed Psychologist;

(5) Licensed Clinical Social Worker (LCSW);

(6) Mental Health Practitioner including: a licensed mental health counselor (LMHC), a marriage and family therapist (LMFT), a creative arts therapist (LCAT), and licensed psychoanalyst.

(7) Physician.

(8) A Licensed Master Social Worker and Physician Assistant who are licensed and practicing within the scope of their state license may recommend rehabilitation services only where noted in the Manual.

(k) "State Agencies" means the New York State Department of Health (DOH), the Office of Mental Health (OMH), the Office of Children and Family Services (OCFS) and this Office, for purposes of this part.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.5 General program standards

(a) Policies and procedures. The provider must approve written policies, procedures and methods governing the provision of services in compliance with Office regulations, including a description of each service to be provided. These policies, procedures and methods must address, at a minimum:

(1) Admission and discharge, including transfer and referral procedures;

(2) Treatment/recovery plans, including service plans where appropriate;

(3) staffing, in compliance with Office regulations, the Manual and the Standards of Care;

(4) screening and referral for associated physical or psychiatric conditions;

(5) a schedule of fees for services rendered;

(6) infection control procedures;

(7) cooperative agreements with other chemical dependence providers and other providers of services a patient may require;

(8) compliance with other requirements of state and federal laws, regulations and OASAS guidance including HIV/AIDS education, testing and counseling and the use of alcohol and other drug screening and toxicology tests, and medication and the use of medication supported recovery;

(9) quality improvement and utilization review;

(10) procedures for emergencies;

(11) incident reporting and review;

(12) record keeping and record retention policies specific to the provision of service provided;

(13) staff training;

(14) confidentiality and disclosure of patient records in accordance with state and federal laws;

(b) Authorized services provided. Each authorized service to be provided must be identified. Policies, procedures and methods established for the provision of those specific services must comply with all existing OASAS regulations as well as any requirements set forth in the Manual

(c) Emergency medical kit: All providers must maintain an emergency medical kit containing basic first aid and at least one Narcan emergency overdose prevention kit.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.6 Authorized services

(a) Authorized services. Authorized services as further de fined in 18 NYCRR 505.38 and/or the Manual include:

(1) Crisis intervention (CI): CI services are provided to a child/youth and his/her family, who is experiencing a behavioral health (psychiatric or substance use) crisis and are designed to:

(i) Interrupt and/or ameliorate the crisis;

(ii) Include a culturally and linguistically appropriate assessment;

(iii) Result in immediate crisis resolution and de-escalation;

(iv) Develop a crisis plan.

(2) Other licensed practitioner (OLP): OLP is a non-physician licensed behavioral health practitioner (NP-LBHP) licensed to practice in New York State and operating within their scope of practice i n a setting permissible by state law. A NP-LBHP includes an individual licensed and able to practice independently as:

(i) a Licensed Mental Health Practitioner including a licensed mental health counselor (LMHC), a marriage and family therapist (LMFT), and licensed psychoanalyst;

(ii) Licensed Clinical Social Worker (LCSW)

(iii) Licensed Master Social Worker (LMSW), when practicing under the supervision or direction of a LCSW, Licensed Psychologist or Psychiatrist.

(3) Community Psychiatric Support and Treatment (CPST): CPST are goal-directed supports and solution-focused interventions intended to achieve identified goals or objectives as set forth in a treatment/recovery plan. CPST is designed to provide community-based services to children/youth and families who may have difficulty engaging in formal office settings, but can benefit from community based rehabilitative services. This includes the implementation of EBP with prior authorization from the State Agencies.

(4) Psychosocial Rehabilitation (PSR): PSR services are task-oriented interventions, outlined in the treatment/recovery plan, designed to compensate for or eliminate functional deficits and interpersonal and/or environmental barriers associated with behavioral health needs. The intent of PSR is to restore, rehabilitate, and support a child/youth's functional level as much as possible and as necessary for the integration of the child/youth as an active and productive member of their community and family with minimal ongoing professional interventions.

(5) Family Peer Support Services (FPSS): FPSS includes formal and informal services and supports provided to families of children/youth experiencing social, emotional, developmental, medical, substance use, and/or behavioral challenges in their home, school, placement, and/or community.

(6) Youth Peer Support and Training (YPST): YPST services are formal and informal services and supports provided to children/youth experiencing social, emotional, medical, developmental, substance use and/or behavioral challenges in their home, school, placement and/or community and are intended to ensure the active engagement and participation of children/youth in the treatment planning and implementation process.

(b) Approved Modality and Setting.

(1) Modality. Unless otherwise authorized, services should include face-to-face interaction with the child/youth and their family, as appropriate. Any such interactions, or the reason(s) such interaction could not be completed, should be documented in the patient treatment/recovery plan and case record.

(2) Setting. Services may be provided in a variety of settings, including an emergency room, health or behavioral health clinic setting, or other community location where the child/youth lives, attends school, works or engages in social activities. Services should be offered in the best setting suited for the desired outcomes and as referenced in the Manual.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.7 Application Process

(a) Request for Designation.

(1) Applicants must first apply for designation by confirming they are a provider in good standing with an OASAS or OMH field office and identify any existing license or certification provided by OASAS or OMH.

(2) Designated providers will be categorized according to the following:

(i) Existing OASAS certified or OMH licensed providers; or

(ii) All other providers or proposed new providers.

(b) Programs will be certified pursuant to Part 810 of this Title and will have noted on the operating certificate each of the services approved for delivery. The process for certification will be as follows:

(1) Existing OASAS certified or OMH licensed providers. Existing OASAS certified or OMH licensed providers may follow the procedure to file an application requiring administrative review in accordance with Part 810.6, to provide services pursuant to this Part, and in accordance with the criteria as set-forth in the Manual.

(2) All other providers or proposed new providers. All other providers or proposed new providers must follow the procedure to file an application requiring full review in accordance with Part 810.5, to provide services pursuant to this Part, and in accordance with the criteria as set-forth in the Manual.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.8 Standards pertaining to Medicaid reimbursement

Reimbursement for children's health and behavioral health services must be in accordance with the rates and fees established by the State Agencies and approved by the Director of the Budget.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.9 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

N.Y. Comp. Codes R. & Regs. Tit. 14 § 823.10 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Repealed New York State Register March 22, 2017/Volume XXXIX, Issue 12, eff. 3/22/2017

Part 824 Specialized Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 824.1 Definitions

(a)

(1) Specialized services shall mean addiction services not defined in other Parts of this Title. Specialized services shall be defined by the Commissioner pursuant to section 19.07 of the Mental Hygiene Law and shall require an appropriate review and approval of a certification or recertification application pursuant to this Title. Such services may be provided in any setting deemed appropriate by the Commissioner.

History

Adopted New York State Register February 3, 2021/Volume XLIII, Issue 05, eff. 2/3/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 824.2 Standards

(a) Standards for certification and regulation of any specialized service shall be developed by the Office and may be unique to the service to be delivered by such specialized service. Unless otherwise indicated, standards for any other program or service certified, funded or otherwise authorized by the Office shall not apply to such specialized service.

History

Adopted New York State Register February 3, 2021/Volume XLIII, Issue 05, eff. 2/3/2021

N.Y. Comp. Codes R. & Regs. Tit. 14 § 824.3 Severability

If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provisions or applications, and to this end the provisions of this Part are declared to be severable.

History

Adopted New York State Register February 3, 2021/Volume XLIII, Issue 05, eff. 2/3/2021

Part 825 Integrated Outpatient Services

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.1 Background and Intent

(a) Physical and behavioral health conditions (i.e., mental illness and/or substance use disorders) often occur at the same time. Persons with behavioral disorders frequently experience chronic illnesses such as hypertension, diabetes, obesity, and cardiovascular disease. These illnesses can be prevented and are treatable. However, barriers to primary care, as well as the difficulty in navigating complex healthcare systems, are a major obstacle to individuals with behavioral health disorders seeking treatment for their physical conditions. Primary care settings have, at the same time, become a gateway to the behavioral health system, as people seek care for mild to moderate behavioral health needs (e.g., anxiety, depression, or substance use) in primary health care settings.

Health care providers have long recognized that many patients have both physical and behavioral health care needs, yet physical and behavioral healthcare services have traditionally been provided and paid for separately. Even behavioral health services have traditionally been treated in a bifurcated system (e.g. substance use disorder treatment is treated separately from mental health treatment).

(b) The term "integrated care" describes the systematic coordination of primary and behavioral health care services. The growing awareness of the prevalence and cost of comorbid physical and behavioral health conditions, and the increased recognition that integrated care can improve outcomes and achieve savings, has led to increasing acceptance of delivery models that integrate physical and behavioral health care. Moreover, most patients prefer to have their physical and behavioral health care delivered in one place, by the same team of clinicians.

(c) Accordingly, these regulations will prescribe standards for the integration of physical and behavioral health care services in certain outpatient programs licensed by the Department of Health, the Office of Mental Health, and/or the Office of Alcoholism and Substance Abuse Services.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.2 Legal base

(a) Office of Mental Health.

(6) Article 33 of the MHL establishing basic rights of persons diagnosed with mental illness.

(b) Department of Health.

(1) Section 19.07(c) of the MHL charges the Commissioner of the Office of Alcoholism and Substance Abuse Services with the responsibility to ensure that persons who abuse or are dependent on alcohol and/or substances and their families are provided with care and treatment that is effective and of high quality.

(5) Section 19.21(d) of the MHL requires the Office of Alcoholism and Substance Abuse Services to establish reasonable performance standards for providers of services certified by the office.

(10) Section 32.09(b) of the MHL provides that the Commissioner of Alcoholism and Substance Abuse Services may, once a controlled substance is approved by the Commissioner of Health as appropriate for such use, authorize the use of such controlled substance in treating a chemically dependent individual.

(d) Pursuant to section 365-l (7) of the Social Services Law and part L of chapter 56 of the Laws of 2012 the Commissioners of the Office of Mental Health, Office of Alcoholism and Substance Abuse Services and Department of Health are jointly authorized to establish operating, reporting and construction requirements, as well as joint survey requirements and procedures for entities operating under the auspices of one or more such agencies in order to integrate the delivery of health and behavioral health services in an efficient and effective manner.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.3 Applicability

(a) The provisions of this Part shall apply to providers seeking approval to provide integrated care services at a single outpatient site (host site). This includes:

(i) locations licensed under PHL Article 28 as diagnostic and treatment centers,

(ii) extension clinics as defined in paragraph (g) of section 401.1 of Title 10

(iii) general hospital outpatient programs licensed under PHL Article 28,

(iv) Substance use disorder Outpatient Services certified under MHL Article 32 and

(v) Clinic Treatment Programs licensed under MHL Article 31.

(b) The standards apply to providers certified or licensed by at least two of the Department of Health, the Office of Mental Health, or the Office of Alcoholism and Substance Abuse Services or in the process of pursuing licensure or certification by another participating state agency.

(c) The requirements of this Part shall be in addition to the requirements of the state agency that licensed or certified the proposed host site.

(d) An integrated service provider shall continue to ensure documentation as required per 18 NYCRR sections 504.3, 517.3(b), 518.1(c), and 518.3(b).

(e) Integrated services providers of mental health services shall continue to ensure compliance with 18 NYCRR section 505.25.

(f) Integrated services providers of substance use disorder services shall continue to ensure compliance with 18 NYCRR section 505.27.

(g) With respect to billing for medical assistance, an integrated service provider shall continue to ensure compliance with 18 NYCRR sections 540.6(a) and 540.6(e).

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.4 Definitions

For the purposes of this Part:

(a) "Behavioral health care" means care and treatment of mental illness and/or substance use disorders.

(b) "Diagnostic and treatment center" means a medical facility as defined in 10 NYCRR section 751.1 or an extension clinic as defined in 10 NYCRR 401.1(g).

(c) "Governing authority" means the entity that substantially controls the operator or provider of services and to which a state licensing agency has issued an operating certificate. The governing authority is the body possessing the right to appoint and remove directors or officers, to approve bylaws or articles of incorporation, to approve strategic or financial plans for a provider or service, or to approve operating or capital budgets for a provider of services.

(d) "General hospital outpatient program" means a distinct part or unit within a general hospital as defined by section 2801 (10) of the Public Health Law through which outpatient services, other than hospital-based ambulatory surgery services, are provided.

(e) "Host Site" means a provider that is licensed or certified by the Department of Health, the Office of Mental Health or the Office of Alcoholism and Substance Abuse Services and is approved to provide integrated care services at a single outpatient site.

(f) "Integrated care services" means the systematic coordination of evidence-based physical and behavioral health care in clinics licensed by one or more state licensing agencies in order to promote health and better outcomes, particularly for populations at risk.

(g) "Integrated services provider" means a provider holding multiple operating certificates or licenses to provide outpatient services, who has also been authorized by a commissioner of a state licensing agency to deliver identified integrated care services at a specific site in accordance with the provisions of this Part.

(h) "Medical director" is a physician who is responsible for the medical services provided by the integrated services provider, for the overall direction of the medical procedures provided and the direct supervision of medical staff in the performance of medical services.

(i) "Outpatient services" means clinic services provided by a diagnostic and treatment center or general hospital outpatient program pursuant to PHL Article 28, a mental health clinic licensed pursuant to MHL Article 31, or a substance use disorder clinic certified pursuant to MHL Article 32.

(j) "Primary care services" means services provided by a physician, nurse practitioner, or midwife acting within his or her lawful scope of practice under Title VIII of the Education Law and who is practicing in a primary care specialty.

(k) "State licensing agency" means the state agency with statutory authority to license or certify a provider of outpatient services and designated in accordance with the provisions of this Part with responsibility to monitor compliance by an integrated services provider with the provisions of this Part. State licensing agency is limited to the Department of Health, the Office of Mental Health, or the Office of Alcoholism and Substance Abuse Services, as applicable.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.5 Integrated Care Models

Integrated services providers will be approved by the appropriate state licensing agency and designated to deliver integrated care services as one of the following models:

(a) Primary Care Host Model: Given the recognition that the general health care system can serve as a gateway to the behavioral health care system, treatment for substance use disorder and/or mental illness is integrated into a single outpatient physical health setting. In this model, a diagnostic and treatment center or a general hospital outpatient program shall be the host site and the Department of Health shall be responsible for monitoring compliance of an integrated services provider with the provisions of this Part.

(b) Mental Health Behavioral Care Host Model: Given that persons with mental health disorders frequently have a co-occurring substance use disorder and/or also experience chronic illnesses, treatment for substance use disorder and/or physical health is integrated into a single outpatient mental health setting. In this model, an Article 31 clinic treatment program shall be the host site and the Office of Mental Health shall be responsible for monitoring compliance of an integrated services provider with the provisions of this Part.

(c) Substance Use Disorder Behavioral Care Host Model: Given that persons with substance use disorders frequently have a co-occurring mental health disorder and/or also experience chronic illnesses, treatment for mental illness and/or physical health is integrated into a single outpatient substance use disorder treatment setting. In this model, an Article 32 substance use disorder outpatient treatment clinic shall be the host site and the Office of Alcoholism and Substance Abuse Services shall be responsible for monitoring compliance of an integrated services provider with the provisions of this Part.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.6 Organization and Administration

(a) A provider may only promote itself as an integrated services provider if the provider has been properly certified by an appropriate state licensing agency, pursuant to this Part.

(b) Governing Authority

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.7 Treatment Planning

(a) Behavioral health treatment planning is an ongoing process of assessing the behavioral health status and needs of the patient, establishing his or her treatment and rehabilitative goals, and determining what services may be provided by the program to assist the patient in accomplishing these goals. An integrated service provider offering behavioral health services shall provide patient-centered treatment planning for each patient. The treatment planning process is a means of reviewing and adjusting the services necessary to assist the patient in reaching the point where he or she can pursue life goals, without impediment resulting from his or her illness. The treatment planning process includes, where appropriate, a means for determining when the patient's goals have been met to the extent possible in the context of the programs offered by the integrated services provider, and planning for the appropriate discharge of the patient from the program.

(b) Patient participation in treatment planning shall be documented by the signature of the patient or the signature of the person who has legal authority to consent to care on behalf of the patient or, in the case of a child, the signature of a parent, guardian, or other person who has legal authority to consent to health care on behalf of the child, as well as the child, where appropriate, provided, however, that the lack of such signature shall not constitute noncompliance with this requirement if the reasons for non-participation by the patient are documented in the treatment plan. The patient's family and/or collaterals (i.e., significant others) may participate as appropriate in the development of the treatment plan and shall be specifically identified in the treatment plan.

(c) Each patient must have a written patient-centered treatment plan developed by the responsible clinical staff member and patient. Standards for developing a treatment plan include, but are not limited to:

(1) For mental health or substance use disorder behavioral care host models, treatment plans shall be completed no later than 30 days after admission. For primary care host models, treatment plans shall be completed no later than 30 days after the decision to begin any mental health and/or substance use services beyond preadmission services.

(2) For services provided to a recipient enrolled in a managed care plan which is certified by the commissioner of Health or a commercial insurance plan which is certified or approved by the Superintendent of Financial Services, treatment plans shall be prepared pursuant to the requirements of the managed care plan or commercial insurance plan.

(3) If the patient is a minor, the treatment plan must also be developed in consultation with his/her parent or guardian unless the minor is being treated without parental consent as authorized by MHL section 22.11 or 33.21, as applicable.

(4) For patients moving directly from one program offered by an integrated services provider to another program offered by the same provider, whether or not it is a program approved to provide integrated services, the existing treatment plan may be used if there is documentation that it has been reviewed and, if necessary, updated within 14 days of transfer.

(d) The treatment plan shall address physical health, behavioral health, and social service needs. In addition, specific consideration of the need for health home care coordination should be noted when appropriate.

(e) The treatment plan shall include identification and documentation of the following:

(1) patient-identified problem areas specified in the admission assessment;

(2) treatment goals for these problem areas (unless deferred);

(3) objectives that will be used to measure progress toward attainment of treatment goals and target dates for achieving completion of treatment goals;

(4) methods and treatment approaches that will be utilized to achieve the goals developed by the patient and primary counselor;

(5) schedules of individual and group counseling;

(6) each diagnosis for which the patient is being treated at the program;

(7) descriptions of any additional services (e.g., vocational, educational, employment) or off-site services needed by the patient, as well as a plan for meeting those needs; and

(8) the signature of the qualified health professional, or other licensed individual within his/her scope of practice involved in the treatment.

(f) All treatment plans shall be reviewed and updated as clinically necessary based upon the patient's progress, changes in circumstances, the effectiveness of services, and/or other appropriate considerations. Such reviews shall occur no less frequently than every 90 days, or by the next occasion where a service is to be provided to the patient, whichever shall be later. For services provided to a recipient enrolled in a managed care plan which is certified by the commissioner of Health or a commercial insurance plan which is certified or approved by the Superintendent of Financial Services, treatment plans may be reviewed pursuant to such other plan requirement as shall apply.

(g) Treatment plan reviews shall include the input of relevant staff, as well as the recipient, family members and collaterals, as appropriate. The periodic review of the treatment plan shall include the following:

(1) assessment of the progress of the patient in regard to the mutually agreed upon goals in the treatment plan;

(2) adjustment of goals and treatment objectives, time periods for achievement, intervention strategies or initiation of discharge planning, as appropriate;

(3) an evaluation of physical health status; and

(4) the signature of the qualified health professional, or other licensed individual within his/her scope of practice involved in the treatment.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.8 Policies and procedures

An integrated service provider shall have written policies, procedures, and methods governing the provision of services to patients, including a description of each service provided. These policies, procedures, and methods shall be reviewed annually and revised as necessary. They shall address, at a minimum, the following:

(a) admission criteria;

(b) evaluations and treatment plans;

(d) the provision of medical services, including screening and referral for associated physical or behavioral health conditions;

(e) how to ensure prompt follow-up action on patients with abnormal test results or physical findings;

(f) identification of specific support and ancillary providers, where appropriate, and methods for coordinating such service delivery;

(g) appropriate transfer and referral procedures to and from other services;

(h) discharge criteria;

(j) how to ensure that staff are prepared to care for emergencies in accordance with the services provided at the host site, and necessary emergency equipment is maintained in working order;

(k) the continuity of care, including regular participation of all integrated care services staff in case conferences, in-service training and staff meetings;

(l) the prescription and administration of medication which shall be consistent with applicable Federal and State laws and regulations;

(m) for providers providing primary care, policies and procedures for investigating, controlling and preventing infections in the host site. The policies and procedures shall include those for:

(1) isolating patients with communicable or infectious diseases or patients suspected of having such diseases;

(2) training all personnel rendering care to such patients in the employment of standard infection control techniques;

(4) reporting immediately to the department of health, in a manner specified by the commissioner of health, the presence of health care associated infections; and to the city, county or district health officer where the host site is listed, the presence of any communicable disease as defined in section 2.1 of Title 10 NYCRR (State Sanitary Code);

(n) public health education and screening with regard to tuberculosis, sexually transmitted diseases, hepatitis, and HIV/AIDS prevention and harm reduction; and

(o) the requirement of the mandatory offer of HIV testing in accordance with section 2781-a of Article 27-F of the Public Health Law.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.9 Integrated Care Services

(a) Primary Care Services

(1) General Principles. Integrated services providers of primary care services shall effectively meet patient physical health needs by:

(i) providing patient care in a continuous manner by the same health care practitioner, whenever possible;

(ii) appropriately referring to other health care facilities or health care practitioners for services not available;

(iii) identifying, assessing, reporting and referring cases of suspected or confirmed child abuse or maltreatment;

(iv) identifying, assessing, reporting and referring cases of suspected or confirmed domestic violence;

(v) ensuring that all staff receive education in the identification, assessment, reporting and referral of cases of suspected child abuse or maltreatment and identification and treatment of victims of domestic violence; and

(vi) developing a written plan of treatment which shall be periodically revised, as necessary, in consultation with other health care professionals.

(2) Provision of Primary Care Services

(i) All primary care services shall be provided in a manner that safely and effectively meets the needs of the patients served in the integrated care services program.

(ii) Integrated care services programs delivering primary care services must have sufficient staff and appropriate equipment to deliver primary care services.

(iii) Integrated services providers delivering primary care services shall conduct periodic reviews of its integration of primary care services with behavioral health services as part of its overall quality assurance program.

(iv) Integrated services providers delivering primary care services shall assign a medical director to be responsible for the primary care services.

(v) Primary care services provided within the specialty of OB/GYN are limited to routine gynecologic care and family planning provided pursuant to 10 NYCRR Part 753.

(vi) Primary care services shall not include prenatal care, dental services or ambulatory surgery which includes any procedure that requires more than minimal sedation or local anesthesia, unless specifically authorized by the Department of Health.

(vii) For integrated service providers providing primary care, practitioners, or their delegate, shall provide their patient complete and current information concerning his or her diagnosis, treatment and prognosis in terms the patient can be reasonably expected to understand and necessary for the patient to give informed consent prior to the start of any nonemergency procedure or treatment or both. An informed consent shall include, at a minimum, the provision of information concerning the specific procedure or treatment or both, the reasonably foreseeable risks involved, and alternatives for care or treatment, if any, as a reasonable medical practitioner under similar circumstances would disclose in a manner permitting the patient to make a knowledgeable decision. A patient also may refuse treatment to the extent permitted by law, and if so, shall be fully informed of the medical consequences of his/her action.

(b) Mental Health Services

(1) General principles.

(a) For adult patients, integrated services providers of mental health care shall effectively meet patient mental health care needs by diagnosing and treating an individual's mental illness, working with the individual in developing a plan of care designed to minimize symptoms and adverse effects of illness, maximize wellness, and promote recovery toward the achievement of life goals such as, but not limited to, education and employment.

(b) For integrated services providers of mental health care that serve children, effective care includes early assessment and identification of childhood emotional disturbances, and engagement of the child and family in the development of a plan of care designed to minimize the symptoms and adverse effects of illness, maximize wellness, assist the child in developing a resilient and hopeful approach to school, family, and community, and maintain the child in his or her natural environment.

(2) Provision of Mental Health Services. Integrated services providers of mental health care shall offer each of the following mental health services, to be provided consistent with patients' conditions and needs, and which include:

(i) Outreach;

(ii) Crisis Intervention:

(a) mental health crisis intervention services must be available 24 hours a day/7 days per week.

(b) after hours coverage may be provided directly by the integrated services provider or pursuant to a clinical services contract, as defined in 14 NYCRR Section 599 (f), which must require, at a minimum, that in the event of a crisis, the nature of the crisis and any measures taken to address such crisis are communicated to the primary care clinician or other designated clinician involved in the individual's treatment in the primary care component of the integrated services provider on the next business day.

(iii) Psychotropic medication treatment, including injectable psychotropic medication administration for adult patients;

(iv) Psychotherapy services, including but not limited to:

(a) Individual psychotherapy

(b) Family/Collateral psychotherapy;

(d) Complex Care Management.

(3) The following optional services may be offered:

(i) Developmental testing (for children and adolescents);

(ii) Psychological testing;

(iii) Psychiatric consultation; or

(iv) Injectable Psychotropic medication administration for patients who are minors.

(4) Integrated services providers delivering mental health services shall conduct periodic reviews of the integration of primary care and/or substance use disorder services as part of its overall quality assurance program.

(1) General Principles.

Integrated services providers of substance use disorder treatment shall effectively meet patient substance use disorders needs by diagnosing and treating an individual's substance use disorders, working with the individual in developing a plan of care to achieve goals identified in the individual's treatment plan and promote recovery.

(2) Provision of Substance Use Disorder Services. For purposes of this subdivision, the term "clinical staff" shall mean staff who provide services directly to patients as prescribed in the treatment plan; including licensed medical staff, credentialed or licensed staff, non-credentialed staff, non-licensed staff and student interns.

(3) Integrated services providers of substance use disorder services shall offer, at a minimum, each of the following services, to be provided consistent with patients' conditions and needs:

(i) assessments

(ii) Counseling, which can be delivered via two distinct methods:

(a) Individual counseling, which is a face-to-face service between a clinical staff member and a patient focused on the needs of the patient to be delivered consistent with the treatment/recovery plan, its development, or emergent issues. Individual counseling must be provided with a frequency and intensity consistent with the individual needs of each unique patient, as prescribed by the responsible clinical staff member; and

(b) Group counseling, which is a face-to-face service between one or more clinical staff member and multiple patients at the same time, to be delivered consistent with patient treatment/recovery plans, their development, or emergent issues. Group counseling must contain no more than 15 patients in each group counseling session.

(iii) Education about, orientation to, and the opportunity for participation in, available and relevant peer support and mutual assistance groups; and

(iv) Chemical abuse and dependence awareness and relapse prevention.

(4) An integrated services provider of substance use disorder services shall:

(i) promote the achievement and maintenance of recovery from substance use disorder and abuse;

(ii) improve functioning and development of necessary recovery management skills so the patient can be treated in the least intensive environment; and

(iii) develop individualized treatment/recovery plans to support the achievement and maintenance of recovery from substance use disorder and abuse, the attainment of economic self-sufficiency (including, where appropriate, the ability to sustain long-term productive employment), and improvement of the patient's quality of life.

(5) Integrated service providers of substance use disorder services may offer:

(i) Collateral services;

(ii) Complex care coordination;

(iii) Medication administration and management;

(iv) Outreach; and

(v) Peer support services.

(6) Integrated services providers delivering substance use disorder services shall conduct periodic reviews of the integration of primary care and/or mental services as part of its overall quality assurance program.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.10 Environment

(a) The minimum physical plant requirements necessary for certification for existing facilities to provide integrated care services are described herein. Providers licensed or certified by a state licensing agency after the effective date of this Part that wish to provide integrated care services or anticipate new construction or significant renovations shall comply with the requirements under Part 711 (General Standards of Construction) and Part 715 (Standards of Construction for Freestanding Ambulatory Care Facilities) of Title 10 of New York Codes, Rules and Regulations.

(b) Outpatient clinic sites proposing to integrate services pursuant to these standards must currently be in compliance with the applicable state licensing agency's environmental standards currently governing the site.

(c) Standards for Integrated Care Services Clinics. In addition to being in compliance with the applicable state licensing agency's environmental standards currently governing the site as required under subdivision (b) of this section, integrated services providers shall meet the following requirements:

(1) General Facility Requirements

(i) A current and accurate floor plan, specifying room locations, dimensions and functions will be provided to each applicable state licensing agency. Program space, except medical examination and treatment rooms, may be shared between certified outpatient services pursuant to an approved schedule. Individual and group rooms shall not be utilized for multiple services simultaneously.

(ii) An adequately furnished waiting area shall be available to those waiting for services and shall be supervised to control access to the facility. There shall be sufficient separation and supervision of various treatment groups (e.g. children) to ensure safety.

(iii) Accessibility for person with disabilities, including availability of accessible bathroom facilities.

(iv) Sufficient space for individual and group sessions consistent with the number of people served and the service offered shall be available. Space shall afford visual and acoustical privacy for both individuals served and staff.

(v) Sufficient and appropriate furnishings and program related equipment and materials for the population served.

(vi) Areas for the proper storage, preparation and use or dispensing of medications and medical supplies and equipment shall be made available. Sharps containers shall be provided and secured, syringes and other supplies should be securely stored, and provisions for holding medical waste are required.

(vii) Controlled access to and maintenance of records and confidentiality of all patient information.

(viii) Annual inspection and testing of the existing fire alarm system, including battery operated smoke detectors, fire extinguishers, emergency lighting systems, illuminated exit signs and environmental controls and heating/cooling systems shall be conducted.

(ix) Facilities shall be maintained in a clean and responsible manner which protects the health and safety of all occupants.

(2) Specific Facility Requirements for Integrating Primary Care Services

(i) Notwithstanding Part 710 (Approval of Medical Facility Construction), Part 711 (General Standards of Construction) and Part 715 (Standards of Construction for Freestanding Ambulatory Care Facilities) of Title 10 NYCRR, physical plant standards under this sub-clause apply to a behavioral health clinic provider authorized to integrate physical health services with no more than 3 proposed examination rooms for physical health services.

(a) Clean Storage. A separate room or closet for storing clean and sterile supplies shall be provided. This storage shall be in addition to that of cabinets and shelves within the examination rooms or patient treatment areas.

(b) An integrated service provider shall dispose of soiled linens and trash appropriately, either through specially-designated receptacles or separate holding room depending upon the volume of soiled materials generated.

(c) If utilizing a receptacle for soiled linens and trash, such receptacle shall not exceed 32 gallons in capacity, except as set forth in clause (d) and shall meet the following:

(1) The average density of the container capacity in a room or space shall not exceed 0.5 gal/ft sq.

(2) A receptacle with a capacity of 32 gallon shall not exceed any 64 ft sq. area.

(3) Mobile soiled linen or trash collection receptacles greater than 32 gallons shall be located in a room protected as a hazardous area when not attended.

(d) If utilizing a receptacle for soiled linens and trash exceeding 32 gallons in capacity at any given time, the integrated service provider shall maintain a soiled holding room.

(1) Soiled holding is for separate collection, storage, and disposal of soiled materials.

(2) A soiled holding room shall be provided, if a dedicated space cannot be provided in the storage area.

(3) All contaminated materials shall be located and placed in a secured and sealed container and disposed of properly in accordance with all applicable laws and regulations. This shall be in the dedicated storage space that is secured and access is only by the Limited Service Clinic Staff.

(4) The containers used solely for recycling clean waste or for patient records awaiting destruction outside a hazardous storage area shall be a maximum capacity of 96-gallons. Containers used solely for recycling clean waste or for patient records awaiting destruction outside of a hazardous storage area may exceed 96-gallons, but only if the provider/supplier is in compliance with National Fire Protection Association (NFPA) 101 Life Safety Code, 2012 edition, sections 18/19.7.5.7.2.

(e) Toilet Rooms

(1) A toilet room containing a hand-washing station shall be accessible from all examination and treatment rooms.

(2) Public Toilet. Toilet(s) for public use shall be immediately accessible to the waiting area. In smaller units (less than four employees), the toilet may be unisex.

(3) Where a facility contains no more than three examination and/or treatment rooms, the patient toilet shall be permitted to serve waiting areas.

(4) Staff toilet and lounge shall be provided in addition to and separate from public and patient facilities.

(5) Centralized staff facilities are not required in small centers. In small centers, staff may utilize shared toilet facilities. Small centers less than four employees.

(6) Floors shall have a smooth, hard, non-absorbent surface that extends upward onto the walls at least 6 inches (152 mm). Vinyl composition tile (VCT) shall not be used in toilet rooms.

(f) Examination and Treatment Rooms

(1) No more than 3 examination rooms shall be provided.

(2) At least one examination room shall be available for each provider who may be on duty at any one time.

(3) Provision shall be made to preserve patient privacy from observation from outside an examination/treatment room through an open door.

(4) A counter or shelf space for completing documentation shall be provided.

(g) Space Requirements

(1) Each examination/observation room shall have a minimum clear floor area of 80 square feet.

(2) The examination room can be a minimum of 72 square feet in size. If other examination rooms meet the Americans with Disabilities Act (ADA) standards for accessible design set forth in Parts 35 and 36 of Title 28 of the Code of Federal Regulations (ADA accessibility standards), assistance can be provided by an individual accompanying the patient or a staff member who the escorts the patient in and out of the examination room.

(3) If three examination rooms are provided, two shall meet the ADA accessibility standards.

(4) Room arrangement shall permit a minimum clear dimension of 2 feet 8 inches (81.28 centimeters) at each side and at the foot of the examination table, recliner, or chair.

(5) Each room shall be designed so that the dimensions of the room are proportional to the square footage to avoid configurations that might hinder the functionality of the program space.

(h) Hand-Washing Stations

(1) A hand-washing station shall be provided in each room where hands-on patient care is provided.

(2) Hand sanitation dispensers shall be provided in addition to hand-washing stations.

(3) Hand-washing basins/countertops shall be made of porcelain, stainless steel, or solid surface materials. Basins shall be permitted to be set into plastic laminate countertops if, at a minimum, the substrate is marine-grade plywood (or equivalent) with an impervious seal.

(4) Sinks shall have well-fitted and sealed basins to prevent water leaks onto or into cabinetry and wall spaces.

(5) The water pressure at the fixture shall be regulated.

(6) Design of sinks shall not permit storage beneath the sink basin, and should accommodate ADA accessibility standards for clearance under the sink basin.

(i) Waiting Area

(1) The waiting area for patients and any individuals that accompany patients shall be under staff control.

(2) The seating shall contain no fewer than two spaces for each consultation room and no fewer than 1.5 spaces for the combined projected capacity at one time of the group rooms.

(3) Where the psychiatric outpatient unit has a formal pediatrics service, a separate, controlled area for pediatric patients shall be provided.

(4) The waiting area shall accommodate wheelchairs.

(5) Provisions for drinking water shall be available for waiting patients. In shared facilities, provisions for drinking water may be outside the outpatient area if convenient for use.

(j) Corridor Allowed to be Used as a Waiting Area

(1) Fixed furniture in egress corridor. The furniture must be securely attached to the floor or wall and can be on only one side of the corridor. Each grouping of furniture cannot exceed 50 square feet and must be at least 10 feet from other groupings.

(2) Furniture shall be located so as to not obstruct access to building service and fire protection equipment, such as fire extinguishers, manual fire alarm boxes, shutoff valves, and similar equipment

(3) Corridors throughout the smoke compartment shall be protected by an electrically supervised automatic smoke detection system, or the fixed furniture spaces shall be arranged and located to allow direct supervision by the facility staff from a nurses' station or similar space (4) The smoke compartment shall be protected throughout by an approved, supervised automatic sprinkler system.

(k) Combustible Decorations in Egress Corridors and Rooms

(1) Combustible decorations shall be flame-retardant or are treated with approved fire-retardant coating that is listed and labeled for application to the material to which it is applied

(2) The decorations shall meet the requirements of NFPA 701, Standard Methods of Fire Tests for Flame Propagation of Textiles and Films

(3) The decorations exhibit a heat release rate not exceeding 100 KW when tested in accordance with NFPA 289, Standard Method of Fire Test for Individual Fuel Packages, using the 20 KW ignition source

(4) The decorations, such as photographs, paintings, and other art, are attached directly to walls, ceiling, and non-fire rated doors in accordance with the following:

i. Decorations on non-fire rated doors shall not interfere with the operation or any required latching of the door.

ii. Decorations shall not exceed 20 percent of the wall, ceiling, or door areas inside any room or space of a smoke compartment that is not protected throughout by an approved automatic sprinkler system.

iii. Decorations shall not exceed 30 percent of the wall, ceiling, and door areas inside any room or space of a smoke compartment that is protected throughout by an approved supervised automatic sprinkler system.

(l) Existing openings in exit enclosures to mechanical equipment spaces that are protected by fire-rated door assemblies. These mechanical equipment spaces must be used only for non-fuel-fired mechanical equipment, must contain no storage of combustible materials, and must be located in sprinklered buildings. This waiver allowance will be permitted only if the provider/supplier is in compliance with all other applicable NFPA 101 Life Safety Code 2000 edition, exit provisions, as well as with section 7.1.3.2.1(9)(c) of the NFPA 101 Life Safety Code 2012 edition.

(ii) Behavioral health clinic providers authorized to integrate physical health services with more than 3 proposed examination rooms shall comply with the requirements under Part 710 (Approval of Medical Facility Construction), Part 711 (General Standards of Construction) and Part 715 (Standards of Construction for Freestanding Ambulatory Care Facilities) of Title 10 NYCRR.

(d) Building Code Requirements

(1) All services and facilities are required to adhere to applicable building codes as well as all local occupancy, use, building and zoning laws.

(2) A valid Certificate of Occupancy is required.

(3) NFPA 101 Life Safety Code, 2000 edition for Chapter 20 New Ambulatory Health Care, Chapter 21 Existing Ambulatory Health Care, Chapter 38 New Business, and Chapter 39 Existing Business occupancies.

(4) New York State Sanitary Code.

(5) All occupied areas shall be ventilated by natural and/or mechanical means.

(6) Air-handling duct systems shall meet the requirements of NFPA 90A.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.11 Quality Assurance, Utilization Review and Incident Reporting

(a) Quality Assurance

(1) Physical Health Services.

(i) Integrated services providers of physical health care shall ensure the development and implementation of a written quality assurance program that includes a planned and systematic process for monitoring and assessing the quality and appropriateness of patient care and clinical performance on an ongoing basis. The integrated care services program shall resolve identified problems and pursue opportunities to improve patient care.

(ii) The integrated care services program shall be supervised by the medical director. This responsibility may not be delegated.

(iii) There shall be a written plan for the quality assurance program which describes the program's objectives, organization, responsibilities of all participants, scope of the program and procedures for overseeing the effectiveness of monitoring, assessing and problem-solving activities.

(iv) The quality assurance plan shall define methods for the identification and selection of clinical and administrative problems to be reviewed.

The plan shall include but not be limited to:

(a) the establishment of review criteria developed in accordance with current standards of professional practice for monitoring and assessing patient care and clinical performance;

(b) regularly scheduled reviews of medical charts, patient complaints and suggestions, reported incidents and other documents pertinent to problem identification;

(c) documentation of all quality assurance activities, including but not limited to the findings, recommendations and actions taken to resolve identified problems; and

(d) the timely implementation of corrective actions and periodic assessments of the results of such actions.

(vi) The outcomes of quality assurance reviews shall be used for the revision or development of policies and in granting or renewing staff privileges, as appropriate.

(vii) There shall be participation in the quality assurance program by administrative staff and health-care professionals representing each professional service provided.

(2) Behavioral Health Services

(i) Integrated services providers of mental health and/or substance use disorder services shall comply with all requirements of 14 NYCRR Part 599 or 822, as applicable, relating to quality assurance.

(iii) Utilization review.

(b) Integrated services providers of mental health and/or substance use disorder services may use a utilization review process developed by the state licensing agency or may develop its own utilization review process that is subject to approval by the state licensing agency.

(d) Utilization review must be conducted by at least one clinical staff member. No member shall participate in utilization review decisions relative to any patient he or she is treating directly.

(e) The utilization review plan must include procedures for ensuring that retention criteria are met and services are appropriate. The utilization review plan must consider the needs of a representative sample of patients for continued treatment, the extent of the behavioral health problem, and the continued effectiveness of, and progress in, treatment. At a minimum, utilization review must include separate random samples based upon a patient's length of stay, with larger samples for patients with longer lengths of stay. Utilization review must also be conducted for all active cases within the twelfth month after admission and every 90 days thereafter.

(f) Documentation of utilization review must be maintained providing evidence that the deliberations:

(1) were based on current progress in treatment relative to the applicable functional areas identified in the patient's comprehensive treatment/recovery plan;

(2) determined the appropriateness of continued stay at the outpatient level of care and intensity of services, as well as whether co-occurring disorder(s) require referral to outside services;

(4) resulted in a recommendation regarding continuing stay, intensity of care and/or referral of this case.

(b) Incident Reporting

(1) Mental health behavioral care host providers shall report incidents involving patients receiving mental health services in accordance with the provisions of 14 NYCRR Part 524.

(2) Substance use disorder behavioral care host providers shall report incidents involving patients receiving substance use disorder services in accordance with the provisions of 14 NYCRR Part 836.

(3) Primary care host providers shall report incidents in accordance with the provisions of 10 NYCRR section 405.8 or 10 NYCRR section 751.10, as applicable.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.12 Staffing

(a) Personnel. The governing authority shall ensure the employment of personnel without regard to age, race, color, sexual orientation, religion, sex or national origin. A personnel file shall be maintained for each employee.

(b) Integrated services programs that are providing primary care services shall ensure that:

(1) the health status of each employee is examined prior to the beginning of employment, which is sufficient in scope to ensure that the employee is free from a health impairment which is of potential risk to patients or which may interfere with the performance of his/her duties;

(2) a record of the following tests, procedures and examinations is maintained for all employees:

(i) a certificate of immunization against rubella which means:

(a) a document prepared by a physician, physician's assistant, specialist's assistant, nurse practitioner, licensed midwife or a laboratory possessing a laboratory permit issued pursuant to Part 58 of Title 10 of the New York Codes of Rules and Regulations, demonstrating serologic evidence of rubella antibodies;

(b) a document indicating one dose of live virus rubella vaccine was administered on or after the age of 12 months, showing the product administered and the date of administration, and prepared by the health practitioner who administered the immunization; or

(c) a copy of a document described in clause (a) or (b) of this subparagraph which comes from a previous employer or the school which the employee attended as a student; and

(ii) a certificate of immunization against measles, for all personnel born on or after January 1,1957, which means:

(b) a document indicating two doses of live virus measles vaccine were administered with the first dose administered on or after the age of 12 months and the second dose administered more than 30 days after the first dose but after 15 months of age showing the product administered and the date of administration, and prepared by the health practitioner who administered the immunization; or

(c) a document, indicating a diagnosis of the employee as having had measles disease, prepared by the physician, physician's assistant/specialist's assistant, licensed midwife or nurse practitioner who diagnosed the employee's measles; or

(d) a copy of a document described in clause (a), (b) or (c) of this subparagraph which comes from a previous employer or the school which the employee attended as a student;

(iii) if any licensed physician, physician's assistant/specialist's assistant, licensed midwife or nurse practitioner certifies that immunization with measles or rubella vaccine may be detrimental to the employee's health, the requirements of subparagraph (i) and/or (ii) of this paragraph relating to measles and/or rubella immunization shall be inapplicable until such immunization is found no longer to be detrimental to such employee's health. The nature and duration of the medical exemption must be stated in the employee's employment medical record and must be in accordance with generally accepted medical standards, (see, for example, the recommendations of the American Academy of Pediatrics and the Immunization Practices Advisory Committee of the U.S. Department of Health and Human Services); and

(iv) for all personnel prior to employment or affiliation, except for personnel with no clinical or patient contact responsibilities who are located in a building or site with no patient care services, either tuberculin skin test or Food and Drug Administration (FDA) approved blood assay for the detection of latent tuberculosis infection, prior to employment or affiliation and no less than every year thereafter for negative findings. Positive findings shall require appropriate clinical follow-up but no repeat tuberculin skin test or blood assay. The medical staff shall develop and implement policies regarding positive outcomes;

(v) an annual, or more frequent if necessary, health status reassessment to assure freedom from a health impairment which is a potential risk to the patients or might interfere with the performance of duties; and

(vi) documentation of vaccination against influenza, or wearing of a surgical or procedure mask during the influenza season, for personnel who have not received the influenza vaccine for the current influenza season, pursuant to section 2.59 of Title 10 of the New York Codes of Rules and Regulations.

(3) each person delivering health care services wears identification indicating his/her name and title.

(1) Integrated services programs providing primary care services shall have a medical director. The governing authority shall be responsible for appointing a medical director who:

(i) is qualified by training, experience, and administrative ability;

(ii) is a physician licensed by and currently registered with the New York State Education Department;

(iii) develops and recommends to the governing authority policies and procedures governing patient care, medical staff and clinical privileges; and

(iv) is responsible for the supervision of the quality assurance program and reporting to the governing authority.

(2) Integrated services providers providing substance use disorder services, shall have a medical director, who, unless such medical director was in place on July 1, 2011:

(i) holds at least one of the following certifications:

(a) a subspecialty board certification in addiction psychiatry from the American Board of Medical Specialties; or

(b) an addiction certification from the American Society of Addiction Medicine; or

(d) a subspecialty board certification in Addiction Medicine from the American Osteopathic Association; and

(ii) possesses a Federal DATA 2000 waiver (buprenorphine-certified).

(iii) In lieu of employing a medical director meeting these requirements, the integrated program services provider providing substance use disorder services may have a consultation agreement with a full- or part-time physician who meets the requirements of this paragraph.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.13 Recordkeeping

(b) Regardless of form or format, each integrated care services program shall establish a recordkeeping system which is maintained in accordance with recognized and accepted principles of recordkeeping.

(c) Each integrated care services program shall designate a staff member who has overall supervisory responsibility for the recordkeeping system. The recordkeeping supervisor shall ensure that:

(2) entries in the integrated care record are current, legible to individuals other than the author, are authenticated with a signature of the person making the entry, date, and time;

(3) handwritten entries must be made in permanent, non-erasable blue or black ink or typed;

(d) The integrated care record format shall facilitate the ability to record the following information for each patient, as relevant:

(1) patient basic demographic information;

(2) patient physical health and behavioral health history:

(i) Physical health information

(a) physical examination reports;

(b) diagnosis or medical impression;

(d) medical orders and anesthesia record;

(e) immunization and drug history; and

(f) notation of allergic or adverse reactions to medications.

(ii) Mental health information

(a) diagnosis or diagnostic impression;

(b) psychosocial assessment; and

(iii) Substance use information

(a) diagnosis or diagnostic impression;

(b) substance use disorder assessment, including the use of tobacco;

(d) substance use disorder treatment history including prior periods of sustained recovery and how such recovery was supported.

(3) admission note;

(4) assessment of the patient's goals regarding basic treatment goals and needs;

(5) treatment plan and applicable reviews;

(6) dated progress notes that relate to goals and objectives of treatment;

(7) discharge plan;

(8) documentation of the services provided and any referrals made;

(9) discharge summary;

(10) dated and signed records of all medications prescribed by the clinic and other prescription medications being used by the patient, if applicable;

(11) consent forms, if applicable; and

(12) record of contacts with collaterals if applicable.

(e) Patient case records must be retained for a minimum period of six (6) years from the date of the last service provided to a patient or, in the case of a minor, for at least six years after the last date of service or three years after he/she reaches majority whichever time period is longer.

(f) Confidentiality

(1) Notwithstanding any other New York State regulation, in cases where component providers of an integrated care services program are governed by different state or federal laws and regulations protecting clinical records and information, the integrated care record shall be governed by the state and federal privacy rules and regulations that give the most protection to the record, unless it is possible to redact provisions of the record with more protection without compromising the purpose for which the record is being disclosed.

(3) AIDS and HIV information shall only be disclosed in accordance with Article 27-F of the Public Health Law.

History

Adopted, New York State Register December 31, 2014/Volume XXXVI, Issue 52, eff. 12/31/2014

N.Y. Comp. Codes R. & Regs. Tit. 14 § 825.14 Application and approval