This is the first of a series about NYS OMH’s and the Department of Mental Health’s licensing policies. This is intended for my ‘peers’, to share what I have learned in my dealings with the mental health system. It took me a long long time to understand and put this together. Thus, I want to save the time to others.
Note: I am not a lawyer or paralegal. This information can’t be taken as legal advice (better believe it) nor as reliable for any legal purposes. In other words, I’m not responsible for the misuse of the information on this post.
Some topics I will cover this week are: ‘best practices’, OMH report last year advocating using unlicensed workers (case managers) to provide the equivalent of psychotherapy, and the SAGE report. Let’s start.
NYS Mental Hygiene Law (MHL) Title E, Article 31: Regulation and quality control of services for the mentally disabled
Section 31.02 Operating certificate required.
Some judges in our State’s courts have alluded to the simplicity of the title of that section 31.02: ‘operating certificate required’ (op cert here on). It flaunts purpose and determination: ‘op cert required, period.’ It is a declaration of State policy. It is a mandate. So why has OMH de-certified more than half of our mental health programs and providers, basically privatizing our public system?
According to the New York State Consolidated Budget and Claiming Manual there are a total of 90 types of mental health programs under OMH. Of those, 22 are licensed and 68 are unlicensed. OMH reported in 2012 that of a total of 6759 programs, 4646 were unlicensed and 2113 licensed.
Do these figures matter to the consumers and to the public, who may one day find itself tagged as ‘client’? Let’s take a look at what a licensing policy accomplishes.
By the way: do you know how many license categories OMH has?1. Licensed 2. Unlicensed 3. Not-licensed(!) 4. Certified 5. Operated by OMH 6. Regulated by OMH 7. Approved by OMH 8. Funded 9. By auspice (From various sources, including the New York State Consolidated Budget and Claiming Manual)
Putting licensing policies in perspective:
Policy is the decisions and actions taken by the state:
- to fix a social problem,
- to protect and
- to offer a better quality of life for its citizens.
The golden rule of all policies is ‘first, DO no harm’. It is so golden that it is alluded to in OMH’s ‘Rule 501.3 Waiver’:
(2) The commissioner may grant a waiver of a regulatory requirement…if he/she determines that:
(i) the rights, health and safety of clients would not be diminished; (The commissioner’s discretionary powers can’t be used if they cause harm. Well, at least in theory.)
All policy systems have a feedback mechanism for those who receive the benefits of the policy. Through it they let the policy-makers know how effectively and efficiently it is working. Our state’s mental health policy is in NY Code – Mental Hygiene, Title B MENTAL HEALTH ACT. Consumer advisory boards (CAB) are the feedback mechanism, including for feedback to providers in the programs where the consumer is receiving the services.
The three characteristics and purpose of a licensing system:
- To protect the public from dishonest practices and bad quality of services, and from violations of consumers’’ rights.
- To regulate the profession or business in question. In our case, it regulates the (mental) health services industry. As a regulatory tool, it has the state’s police-power behind it: violators can be arrested and prosecuted.
- It is a mandatory credentialing process that prohibits anyone not licensed to practice the profession or business in question.
We see all this in: “NYS Mental Hygiene Law, Article 31: Regulation and quality control [to protect] of services Section 31.02 Operating certificate required [the mandate].
Without its licensing policy, the state can’t protect, regulate or monitor its system. And the courts know it:
Hirschfeld v. Teller, NY 2010
“Here, OMH decided that licensure was not required. Because only OMH is authorized to determine whether a facility is required to have an operating certificate and MHLS’s jurisdiction is expressly limited to licensed facilities…defendant nursing homes are entitled to summary judgment dismissing the complaint. ”
And our state legislators, who are aware of the problem of licensing un-compliance, stated in law bill S4858A-2011:
“Lack of progress on licensure has a direct consumer impact. Without full implementation of the law, New York’s seniors cannot age in place and cannot take advantage of the numerous protections and disclosures contained in the statute.
That’s why it says “op cert required”. Once you choose to practice a regulated profession or business you can’t choose to be or not to be regulated, or both.
But wait a minute!! With OMH you CAN be BOTH!
In a Q&A about request to run a business for housing for the mentally ill, the question was whether OMH would accept unlicensed units in a licensed program. But of course, why not? Hey, it’s not like the tenants care that you misrepresented the program as licensed but they are actually in de-regulated ‘units’. ‘It’s all about funding requirements, don’t worry, be happy. Trust me.’
And you can also report, with OMH, as unlicensed a licensed program, and the other way around. For example, in the State’s Consolidated Budget Report, OMH’s:
1510 – School Program Co-located with Clinic Treatment Program (Non-Licensed Program if reported under this code) This program cannot be used to report expenses or revenues associated with services provided by the licensed Clinic Treatment Program (2100). [Parenthesis from the quote, highlight by me.]
2600 – CPEP Crisis Beds (Non-Licensed Program) This program is one of four program components which, when provided together, form the OMH licensed Comprehensive Psychiatric Emergency Program (CPEP). [Which is a licensed program.]
Tomorrow I will comment on the license policies of both the Department of Mental Health and of OMH.