Tag Archives: Operating certificate

On OMH’s unlicensed policy

On OMH’s unlicensed policy is in the form of  a Word doc here

When is ‘minimum’ the same as ‘high’? When NYS OMH says so. Part 3

Yesterday we talked about how both the Department of Mental Health (DOMH) and OMH go to courts to argue against consumers in need of protection that there is no right to sue under NYS’ mental health laws and that they are not mandated to provide ANY levels of quality of services. (Every time I write that I have to laugh; it’s a laughter of irony.)

Today I want you to see, side by side, these two agencies license rules and the NYS MH law giving the mandate to them, and compare them and come to your own conclusion, which I hope is mine too.

law blog

omh side

Again, the state speaks of

  • mentally ill persons
  •  high quality of services
  • Protection of rights
  • OMH must regulate and control the services

And how do these two agencies interpret that? They say, in Part 70.01 that the certificate “is intended”, as in ‘meant’ but doesn’t have to necessarily be the case, that a provider has met, not ‘complied’, with MINIMUM standards of care. MINIMUM.

Question: Since when is ‘minimum’ the equivalent of ‘high’?

I’m thinking, thinking….

The NYS law says “high quality of services”. These agencies downgraded to “minimum”. Thus, according to their “intention”, EVERY single program ought to be ‘certified’ because they ALL provide  the bare “minimum” quality of services, the LEAST quantity or amount possible, which is the definition of “minimum”.scrooge

Not only that: the certification is for the benefit of the provider, meant to hold him accountable ONLY to those minimum standards.  It’s a protection measure for the provider. Don’t hold him up to ‘higher’ standards of care, don’t be cruel, baby.

You think it doesn’t matter? From where do you think they got the court arguments we saw yesterday? “MHL does not impose a duty on OMH to provide any particular level of care for specific individuals”. That was their interpretation.

But this is nothing compared with what I’ll show you tomorrow.Then, after that, we’ll see the privatization of our public mental health system in action. Let me give you a teaser of why OMH told our legislators that  it’s ok to privatize our system”:

“…15% of case managers were performing psychotherapy”

“[licensure]…would not provide any meaningful measure of increased safety or quality to our citizens as reflected by the survey results.”

Whaaat!? My psychotherapist is a case manager!? That’s psycho!

Privatizing NYS public mental health system, one rule at a time. Part 1

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.

Source: “Reports on the Workforce From State Agencies”   (OMH”s report)                                    March 2012

Source: “Reports on the Workforce From State Agencies” (OMH”s report)  
  March 2012

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:

safetynetA State’s licensing system reflects  its policy towards the issue it is licensing; it is part of the policy system.

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 it's the lawnursing 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.

Things that need fixing in our mental health system

Things that need fixing in our mental health system:

1. Certification

The NYS Mental Health Law mandates OMH to certify all providers. Certification provides the legal covers that allows our public legal advocates to bring cases of abusive providers to courts. But, totally against the mandate, OMH has established since the 1990s, together with our State’s DOH, a policy of DECERTIFYING providers. At least half of providers and services are not licensed in NYS.

This decertification scheme has provided judges who are less friendly to the mentally ill in our State’s highest courts the ammunition to allow the continued abuse of the disabled and the mentally ill in not-for-profit agencies. The state knows it; it participates in the abuses and defends these practices in courts.

Refer to the DAI case. Ask yourself: why, in the new millennium, we are still struggling with Willowbrookesque cases; why did we need to create a Center for The Protection of People with Special Needs this year, not 20 years ago?

2. ‘Best Practice’: no monitoring of providers needed.

Without certification, monitoring is just a word among the many used to describe something that is not happening in our mental health system. In other words, ‘monitoring of providers’ is a delusion of our mental health system. NYS courts have decided many times that legal advocates can’t monitor the safety of their clients in places where complains were logged, because these places are not ‘certified’.

Quality of services is a mandate. There is no point in giving money away to ‘providers’ who will pocket the money and dish out substandard mental health treatment. But you can’t have quality of services because our DOH and OMH says that monitoring is not necessary for people who can “defend themselves” from bad providers.  This is actually in their ‘license’ rules. Since you can’t monitor or be defended in court, quality of services becomes an unenforceable fantasy.

3. No Consumer participation.

This is the ‘pet peeve’ of the Citywide Mental Health Project. Please, read our Vision and Mission.

Federal and state laws provide for our participation in the programs, to the policy level of the programs. These provisions are there for us to protect ourselves from the history of abuse, to prevent more abuses.  It’s part of a policy system that requires the feedback of those receiving the benefits of the policy.

If you can buy a ticket to the moon then we consumers can give feedback to our not-for-profit servers.

Our bureaucrats are mis-managing our mental health system. Look, we adore the corporate system, even our bureaucrats use that model.  Just as you find CEOs that destroy their own companies and still get bonuses, we have the corporate model in OMH. They mismanage the system and still get praised.

Meanwhile, down here in the communities, you are raking your minds about why we have Erika Menendez in the streets. You are asking the wrong question. Ask why  OMH so often the defendant in cases of abuse; why is our public system been privatized by a decertification scheme that leaves the troubled people without quality of services. Why are the families so often complaining that the ‘system’ has left them alone with their troubled child?

Don’t look for quick fixes. Forced hospitalization as a remedy to the problem is a delusion you are suffering.

Are NYS OMH’s license policies violating our Mental Health Act?

For an  answer to the above question you have to read OMH’s policies.

NOTE: I’m not a lawyer, nor a paralegal, or a legal counselor or legal advocate. These are my opinions, the opinions of a lay person’s interested in understanding the State’s mental health laws and the ADA. These comments are intended to open a public discussion about NYS OMH’s license policies.

I: NYS Mental Health Act, Title E,  Section 31.02 Operating certificate required.

A. But what does that mean?

That statement that “operating certificate required” looks to me like a declaratory statement:  a requirement for something has been stated. It doesn’t seem to imply in any way, shape or form that operating certificates (op cert) are required only for a few people or only in few  occasions. The statement that “operating certificate required” carries a meaning of purpose and intention: ‘Let it be no doubt about it: operating certificate required, PERIOD.’ That’s what it seems to say and imply. Don’t you agree?

So why has OMH declared that (in what seems to me to be) about half of all mental health providers do not need an operating certificate? I would understand it if FEW providers were exempted from the mandate; after all, every law has an exception on how it is applied:

(a)  Except as provided in subdivision (b) of this section…

That’s the ONLY exemption in the mandate that “operating certificate required”. And what does that exemption say?

(b)  A  provider  of services operating a community residence on April first, nineteen  hundred  seventy-six [1967!],  shall  be  issued  an  operating certificate  by the commissioner without requiring proof that there is a public need for such residence, providing application for such operating certificate to  the  department  in  accordance  with  this  article  is submitted  prior  to  September  first,  nineteen  hundred  seventy-six. Pending the determination of any such  application  the  continuance  of such  operation shall be lawful.

That’s the only exemption: that a provider running a community residence program open for business since April 1967 or before will be exempt from the requirement IF the operation is deemed “lawful” by today’ standards.  I venture to say that MOST programs we have today didn’t open for business until after at least 1985, the decade of the big changes in our public mental health system. Those programs would NOT qualify for the exemption. I hope you agree with me up to here.

What activities are mandated to have an op cert?

(a)…no provider of services shall engage in any of the following activities  [ there are 5] without  an operating  certificate…
1. operation of a residential facility  or  institution,  including  a
  community residence,…

Let’s see this one first. Only in court would you split hairs in interpreting the meaning of “residential facility”, “facility” “or community residence”. If you are in a  supported housing program (SHP), you would consider it a “residential facility”, wouldn’t you? Same if you live in congregate housing, SRO, etc, whether or NOT it was run by an institution. It seems logical: I live there, therefore it IS  a RESIDENCE.

Are there any other exemptions if, as I said, they ALWAYS exist in any law? Yes, they are here too! Continuing on the same “(a)1” as above:

It shall not include a place where the services rendered consist solely of non-residential services for the mentally disabled which are exempt from the requirement for an operating certificate under article sixteen, thirty-one or thirty-two of this chapter, nor shall it include domestic care and comfort to a person in the home.

So here we have the characteristics  of those services exempted of the requirement to have an op cert:

a. services that are SOLELY non-residential in nature – this means that if there is at least ONE residential service in it, it is NOT exempt from the op cert requirement, it HAS to have one. To be exempt it has to be SOLELY of non-residential nature AND, in addition…

b. services SOLELY of non-residential nature which are  exempt by articles 16, 31 or 32 of this chapter. That means that even non-residential services REQUIRE an op cert  if they are not “exempt by articles 16, 31 or 32 of this chapter.” There seems to be an intent running through these exemptions: that as long as you provide SERVICES, you  MUST HAVE AN OP CERT, PERIOD. (caps are for emphasis, not shouting.). Whether residential OR NON-RESIDENTIAL, you must have an op cert.

c. domestic care and comfort at home is not required to have op cert.

This intent that all services require an op cert is shown in the second description of activities that require one:

2. operation of any part of a general hospital for the purpose of providing residential or non-residential services for the mentally disabled.

And if you are still not satisfied that the INTENT of this “op cert required” is to have ALL mental health services covered by a mandate, check the third characteristic of services which must have one:

3. operation of a facility established or maintained by a public agency, board, or commission, or by a corporation for the rendition of out-patient or non-residential services for the mentally disabled;”

Even “corporations”, not only public  “board” and “commission” and ‘agency” must have an op cert EVEN if they provide out-patient or non-residential services. Of course, there are the eternal exemptions in this case too  for these “corporations’ which provide non residential services. These are:  pastoral mental health services, providers licensed by another agency, and private practice.

The 4th and 5th activities which requires op cert:

4. operation of a residential treatment facility for children and youth.

5. operation of a residential care center for adults.

So there you have it. The INTENT of our NYS Mental Health Act seems to be that providers of services, including out-patient, residential and non-residential services, must have an op cert.

Again, why have OMH apparently decertified more than half of all providers of these services?

II: Why op cert required?

The question is Why are so many programs exempt? Does it matter? Of course it does! This is the DMH/OMH reason for having op certs:

Part 70.01 (b)2…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.http://weblinks.westlaw.com/result/default.aspx?cnt=Document&db=NY-CRR-F-TOC%3BTOCDUMMY&docname=365892426&findtype=W&fn=_top&pbc=DA010192&rlt=CLID_FQRLT64198413922156&rp=%2FSearch%2Fdefault.wl&rs=WEBL12.04&service=Find&spa=nycrr-1000&vr=2.0

So, no license = no accountability, no safety, no quality of services. This explains why so many providers accused of abuses on consumers go without punishment: because they are unlicensed! The State has no power of oversight if these providers are unlicensed. To be unlicensed means to be OUTSIDE OUR PUBLIC mental health system.

These are two of the six reasons given by the Act for having an op cert:

“(a) No operating certificate shall be issued by the commissioner unless the commissioner finds:

1. that the premises, equipment, personnel, records, and program are adequate and appropriate to provide the services for the mentally disabled which are sought to be authorized,

2. that such services will be provided in compliance with applicable law and regulations,”  at NY Code – Section 31.05: Issuance of an operating certificate.

Look it up yourselves in the link below, don’t take my words for it: more than half of programs are unlicensed, meaning out side our public system, not required to provide MINIMUM quality of services and protection, etc, etc, etc. See them here and count for yourselves, then answer the question: Why are so many programs unlicensed?

NYS Consolidated Budget and Claiming Manual, Appendix F – OMH Programs Types, Definitions and Codes

(start at 0040 – Family Care
(Licensed Program)


Next: OMH’s licensing rules. Are they in violation of the ADA?