Current through Register Vol. 46, No. 39, September 25, 2024
(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.
(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
matter at hand must accompany such submission.
(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.
