(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.

2. Subdivisions (b) and (c) of Section 540.8 are amended to read as follows:

(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 [psychiatrist] 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 [board-certified or board-eligible psychiatrist] psychiatric examiner who is employed at the facility to examine the patient. The [psychiatrist] 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 [psychiatrist] 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.

3. Subdivisions (b), (c) and (k) of Section 540.9 of Title 14 NYCRR are amended to read as follows:

(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 [psychiatrist] 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 [psychiatrist] psychiatric examiner in accordance with the procedures described in section 540.8(c) of this Part.

(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 [psychiatrist] 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.

This proposal is filed as a Consensus rule on the grounds that it is non-controversial and makes minor technical corrections. No person is likely to object to this proposed rule since it merely conforms the current regulations to statute.

14 NYCRR Part 540 sets forth the requirements for facilities of the Office of Mental Health to establish a mechanism to ensure clinical review of criminal order patients to determine whether or not release, change of status, the granting of a furlough or a return to court is appropriate. Subdivisions (b) and (c) of Section 540.8 specify the process by which the clinical director of the facility (defined as a facility director, when such person is a psychiatrist, or, when that is not the case, the deputy director for clinical services) 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 or she is not an incapacitated person. These provisions are intended to implement authority established in Criminal Procedure Law Sections 730.10 and 730.60. The clinical director has the responsibility for deciding whether the patient remains an incapacitated person or is fit to stand trial. Current regulations specify that the clinical director may designate a board-certified or board-eligible psychiatrist employed at the facility to examine the patient and prepare a report in which he or she makes a recommendation to the clinical director.

Under Criminal Procedure Law Section 730.10, the term “psychiatric examiner” is defined as 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 this respect, the language of the current implementing regulations can be read to limit authority established in statute, which was not the intent. Thus, the purpose of this amendment is to conform the language of the regulations to the law such that the director of a facility (or his/her designee) may designate a psychiatric examiner (which includes both psychiatrists and psychologists with certain credentials) to examine a patient and prepare a report to determine capacity, rather than restrict this function only to board-certified or board-eligible psychiatrists. This amendment will provide needed flexibility to facilities by expanding the pool of qualified staff who can prepare competency reports and enable individuals to be evaluated in a more expeditious manner, consistent with statutory authority.

Statutory Authority: 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, 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. Criminal Procedure Law Article 730.10 includes definitions with respect to fitness to proceed. Such definitions also define the titles of “psychiatric examiner” and “qualified psychiatrist.” Mental Hygiene Law Section 1.03 provides the definition of “certified psychologist.”

A Job Impact Statement for these amendments is not being submitted with this rule making. This rule conforms regulatory provisions to statute with respect to the performance of competency reports. It is apparent from the nature and purpose of the rule that it will not have an impact on jobs and employment opportunities.