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 [authorized, licensed, funded or operated] 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.

§ 815.3 is amended to read as follows:

This Part applies to any provider currently certified, funded or otherwise authorized [authorized, licensed, operated or funded] by OASAS to provide addiction services.

A new subdivision (r) is added to § 815.4 to read as follows:

(r) Providers shall develop and implement policies and procedures to ensure the provision of culturally competent and affirming services for patients consistent with their sexual orientation and gender identity or expression.

§ 815.4(a) is amended to read as follows:

The facility or provider agency as program sponsor shall establish policies and procedures and ensure that staff are adequately trained on the content of such policies and procedures, to protect patient rights.

New paragraphs (19),(20), and (21) are added to subdivision (a) of § 815.5 to read as follows:

(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 competent and affirming care and to be free from harassment and/or discrimination based on their sexual orientation or their gender identity or expression.

(21) Prohibition against discrimination in admission. No individual that meets the level of care criteria shall be denied admission to any program based solely on the individual’s:

(i) prior treatment history;

(ii) referral source;

(iii) pregnancy;

(iv) history of contact with the criminal justice system;

(v) HIV or AIDS 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 illicit or prescribed substance, including but not limited to, benzodiazepines; or

(x) use of medications for substance use disorder prescribed and monitored by an appropriate practitioner.

New subdivision (d) is added to § 815.12 to read as follows:

1. Statutory Authority:

(a) Section 19.07(c) of the Mental Hygiene Law (“MHL”) charges the Commissioner (“Commissioner”) of the New York State Office of Alcoholism and Substance Abuse Services (“the Office”) 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 chemical dependence 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 treat alcoholism and substance dependency.

(g) Section 22.03 of the MHL requires the director of any chemical dependency 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 chemical dependence 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 any chemical dependence treatment activities 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.

2. Legislative Objectives: Articles 19 and 32 of the Mental Hygiene Law authorize the promulgation of rules and regulations to regulate and assure the consistent quality of services provided within the state to persons with or at risk of a substance use disorder and/or problem gambling. The Office is also directed to foster programs for the training and development of persons capable of providing substance use disorder and gambling addiction services. This amendment will make technical amendments to replace outdated terminology with current terminology, and include language related to patient rights consistent with legislative objectives.

3. Needs and Benefits: The proposed rule will replace “authorize, licensed, funded, or operated” with “funded or otherwise authorized” in order to replace outdated terminology with current terminology. The amendment will also include the addition of language related to provider requirements and patient rights consistent with the existing Local Services Bulletin (LSB) on provision of affirming care for Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) patients. The addition of language in Part 815 adds regulatory language for a pre-existing administrative requirement. This will strengthen the agency’s expectations of providers for the provision of LGBTQ competent and affirming care thereby creating a better healthcare environment for individuals seeking substance use disorder treatment in New York. The revised regulatory amendments clarify language on non-discrimination policies which are included in OASAS programmatic regulations and are hereby placed in one regulation for clarity and consistency for providers and provide clarity on existing agency requirements.

4. Costs: No additional administrative costs to the agency are anticipated. No additional costs to programs/providers are anticipated as the minimum requirements outlined in this regulation are already required administratively by a local services bulletin issued by OASAS in 2017 and updated in 2019.

5. Paperwork: The proposed regulation will not require any additional paperwork as these requirements are already required administratively by a local services bulletin issued by OASAS in 2017 and updated in 2019. Non-discrimination policies are already required by OASAS programmatic regulations under which programs are certified and OASAS already requires staff training on policies and procedures and appropriate client/staff relationships, additional language added to the regulation is for clarity.

6. Local Government Mandates: This regulation imposes no new mandates on local governments operating certified OASAS programs even if they employ OASAS credentialed professionals.

7. Duplications: This proposed rule does not duplicate any State or federal statute or rule.

8. Alternatives: One alternative would be for the agency to leave the outdated language in the regulation. However, the agency is proposing the amendments in order to be consistent with legislative objectives and existing agency requirements. For those providers that are not otherwise compliant, corrective action plans will be required for failure to comply with existing agency guidance. Providing clarity within the regulation allows for providers to ensure that they are compliant with agency expectations in advance of a program review.

9. Federal Standards: This regulation does not conflict with federal standards.

10. Compliance Schedule: This rule making will be effective upon publication of a Notice of Adoption in the State Register.

OASAS has determined that the rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments because amendments to the revised regulations clarify language on non-discrimination policies which are included in OASAS programmatic regulations and are hereby placed in one regulation for clarity and consistency for providers. Other regulatory amendments are made for clarity and are based on existing agency requirements.

OASAS has determined that the rule will not impose any adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas because the amendments to the revised regulations clarify language on non-discrimination policies which are included in OASAS programmatic regulations and are hereby placed in one regulation for clarity and consistency for providers. Other regulatory amendments are made for clarity and are based on existing agency requirements.

No change in the number of jobs and employment opportunities is anticipated as a result of the proposed amendment to the revised regulations because the amendments clarify language on non-discrimination policies which are included in OASAS programmatic regulations and are hereby placed in one regulation for clarity and consistency for providers. Other regulatory amendments are made for clarity and are based on existing agency requirements. The providers will not need to hire additional staff or reduce staff size; the proposed changes will not adversely impact jobs outside of the agency; the proposed changes will not result in the loss of any jobs within New York State.

The agency received no public comment.