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Office of Mental Health

FAQs Regarding Mental Health and Chemical Dependency Regulations

Analysis:  Much of What Are Perceived To Be Regulatory Barriers Are Not Or Can Be Managed With Support Or Waiver Actions

I.  General Questions Related To Authority of OMH and OASAS:

  1. What is the responsibility of the Office of Mental Health (OMH) with respect to persons with mental illness?
  1.   OMH is responsible for assuring the development of comprehensive plans, programs, and services for research, prevention, care, treatment, rehabilitation, education, and training of persons with mental illness.  OMH is required, by law, to cooperate with the Office of Alcoholism and Substance Abuse Services (OASAS) and the Office For People With Developmental Disabilities (OPWDD) in the development of these plans, programs, and services.
  1. What is the responsibility of the Office of Alcoholism and Substance Abuse Services (OASAS) with respect to persons with chemical dependency?
  1. OASAS is responsible for assuring the development of comprehensive plans, programs, and services for research, prevention, care, treatment, rehabilitation, education, and training of persons who abuse or are dependent on alcohol and/or substances and their families.  By law, OASAS is required to cooperate with the Office of Mental Health (OMH) and the Office For People With Developmental Disabilities (OPWDD) in the development of these plans, programs, and services.
  1. If a provider is certified by OMH to provide mental health services, is that provider prohibited from admitting an individual who also has a co-occurring substance use disorder?
  1. No.  There is nothing in NYS law or OMH regulations that would bar a mental health provider from admitting a person who also has a substance use disorder,so long as the person meets the admission criteria of the mental health program and is able to participate in the program. 
  1. If a mental health provider admits a person to, for example, an outpatient mental health clinic, and the person also has a substance use diagnosis, isn’t the clinic providing substance use services that require an operating certificate from OASAS?
  1. No.  Mental Hygiene law Section 32.05 provides that no provider of services shall engage in the provision of outpatient services for persons with chemical dependency without having been issued an operating certificate from OASAS.  However, if an outpatient mental health provider admits a person who meets the criteria for admission to the outpatient program, it is providing outpatient mental health services to the person, not chemical dependency services.  In this respect, the person’s co-occurring substance use disorder is being managed in the course of the provision of mental health services, but the person is not being provided with chemical dependency outpatient services that require OASAS licensure. 
  1. If a provider is certified by OASAS to provide chemical dependency services, is that provider prohibited from admitting an individual who also has a co-occurring mental health disorder?
  1. No.  There is nothing in NYS law or OASAS regulations that would bar a chemical dependency provider from admitting a person who also has a mental health diagnosis, so long as the person meets the admission criteria of the chemical dependency provider and is able to participate in the program.
  1. If a chemical dependency provider admits a person to, for example, a Part 822 outpatient clinic, and the person also has a mental health diagnosis, isn’t the clinic providing mental health services that require an operating certificate from OMH?
  1. No.  Mental Hygiene law Section 31.02 provides that no provider of services shall engage in the provision of outpatient services for persons with mental illness without having been issued an operating certificate from OMH.  However, if a Part 822 outpatient clinic admits a person who meets the criteria for admission to the Part 822 clinic, it is providing outpatient chemical dependency services to the person, not mental health services.  In this respect, the person’s co-occurring mental health disorder is being managed in the course of the provision of chemical dependency services, but the person is not being provided with mental health outpatient services that require OMH licensure. 
  1. What is integrated treatment?
  1. There are several models of integrated treatment. While not necessarily precluding the development of other models, OASAS and OMH are directing initial focus on an integrated treatment model in which traditional chemical dependency and mental health programs seek to manage the multiple symptoms of their presenting patients by incorporating techniques of mental health or addiction screening, assessment, and counseling into their own spectrum of services.  However, the primary clinical focus of the program remains on the principal diagnosis that was necessary for admission to the program.  In this way, each type of program (chemical dependency or mental health) can work within its current certification structure and is not required to seek licensure from the other governing State agency (OASAS or OMH).    

II.  Staffing:

  1. If an outpatient mental health provider wants to have a CASAC on staff to work with persons with program who have chemical dependency problems in addition to their mental illness, is OASAS approval required?  Would OASAS approval be required to bill Medicaid for the services provided by the CASAC
  1. There is nothing in either OMH or OASAS regulations that would prevent an OMH certified program from directly hiring a CASAC to include on its professional staff team.  OASAS approval is not required.  If a CASAC is employed by an OMH certified clinic, the services that the CASAC provides are mental health services billable to Medicaid under the provider’s OMH operating certificate.           

    In fact, OMH clinic regulations (14 NYCRR Section 587.4) currently envision inclusion of CASACs as professional staff.  Nothing in OASAS regulations prohibits CASACs from working in OMH certified settings, or requires the approval of OASAS before they can do so.  Furthermore, in county clinics, there is an additional mechanism by which staff can be shared between OASAS and OMH settings, i.e., CFR reporting of time allotted to each service.  

    A similar conclusion holds true with respect to the use of mental health professionals in an OASAS program.  There is nothing in OASAS regulations that would prohibit OASAS certified programs from hiring mental health professionals.   In fact, such professionals are often critical in meeting OASAS "multidisciplinary team" requirements.

  1. Is a physician who works at an OASAS program prohibited from prescribing psychotropic medication?  Similarly, is a physician who works at an OMH program prohibited from prescribing a chemical dependency-related medication?
  1. Not by either OMH or OASAS regulations, as neither set of regulations dictates what physicians can or cannot prescribe.  From the perspective of both agencies, NYS licensed physicians can prescribe any medication they believe is necessary for the appropriate treatment of a disorder.
  1. Can OMH regulations be changed or waived to require OASAS funded CASACs working in OMH certified programs to go through the criminal background check now required by OMH?   
  1. No.  This is not permitted under the law (MHL Section 31.35 and Executive law Section 845-b.  There is no legal authority to request, or to have OMH review, the criminal history background of a person who is not seeking employment with a provider that is under OMH’s jurisdiction.  Unless the CASAC is going to be directly employed by an OMH certified clinic, this is not permitted under law, regardless of whether or not OASAS (or OMH) consents to it.   The simplest solution is to simply have the OMH certified clinic hire a CASAC.

III.  Information Sharing:

  1. We have both an OMH certified clinic and an OASAS certified clinic co-located at the same site.  The need to keep assessments, treatment plans and other chart documents separate is a problem that causes unnecessary hardship for staff and clients alike.  Is it possible to waive OASAS or OMH regulations so that patient mental health and chemical dependency charts can be stored in one, combined Medical Chart Room, and ideally also in one integrated medical chart?
  1. If appropriate security mechanisms were in place, OMH and OASAS would likely permit storage of charts in a combined chart room.  However, one integrated medical chart is more problematic because in doing so,  the OMH clinic information would become subject to the confidentiality strictures of federal regulations governing the confidentiality of information created or maintained by federally funded alcohol/substance abuse providers, found at 42 CFR Part 2.  Neither OMH nor OASAS has the ability to waive federal regulations.  This presents many concerns with respect to the loss of ability to make some disclosures that are currently permissible, and in some cases required, under MHL Section 33.13 and HIPAA. This is one reason why the strategy of providing appropriate integrated treatment in each setting, without trying to link or merge these areas, is advantageous.  In general, co-location of treatment better reflects a parallel system structure rather than true integration, which is what OMH and OASAS wish to encourage.    

    In addition, a co-located program, unlike integrated treatment, must be able to demonstrate to outside auditors, such as CMS, that certain services have been provided in accordance with governing Medicaid regulations.  This drives the need to have this information separately identifiable.  Again, integrated treatment within one program would mitigate this problem.    

  1. Can a guideline be developed to permit staff of organizations providing both chemical dependency and mental health certified services to share clinical information when clinically indicated?   All agencies that run concurrent or co-located OMH and OASAS services should conform to the most stringent privacy regulations (42CFR Part 2). This regulation and/or our interpretation have frustrated efforts to co-locate in order to better integrate assessment and treatment for individuals experiencing co-occurring disorders. Even though the programs are co-located, mental health and chemical dependency staff hesitate to consult with one another and do not look at each other’s records. Help is needed to permit staff of organizations providing both chemical dependence and mental health certified services to share clinical information when clinically indicated.
  1. Neither OMH nor OASAS have the ability to waive federal regulations (i.e., 42 CFR Part 2).  For patients enrolled in both programs, obtaining consent upon admission to the chemical dependency program to permit disclosures by the mental health program would resolve this issue.  Providing appropriate integrated treatment in one program or the other, in accordance with a patient’s needs, without trying to link or merge these areas, would be another way to remove this perceived barrier.

    Requiring OMH clinic information to be used and disclosed in accordance with the strictures of 42 CFR Part 2 presents many concerns with respect to the loss of ability to make some disclosures that are currently permissible under MHL Section 33.13 and HIPAA, and in some cases required (e.g., reporting crimes against patients, that do not necessarily occur on program premises, in accordance with MHL Section 31.11).  

  1. Can assessments/evaluations across both OASAS and OMH certified agencies be standardized to allow for one agency to utilize another’s already recently conducted assessment/evaluation?
  1. Co-located programs have to be able to demonstrate to outside auditors, such as CMS, that certain services have been provided in accordance with governing Medicaid regulations.  It is not clear whether use of an assessment or evaluation service prepared and documented by another agency might prove problematic in this respect.   In addition, the clinical and liability implications of relying on another program’s work would have to be carefully evaluated before selected as a possible solution.
  1. Can permission be obtained to use the same receptionists for chemical dependency and mental health clients in a co-located treatment setting? In our County clinic, currently, chemical dependency and mental health outpatient clinic patients use one waiting room, but must speak to receptionists through different round holes cut into the glass surrounding the receptionists, based on grounds that the OASAS patients’ confidentiality might be violated if more than one receptionist were to be involved.
  1. OMH does not have "waiting room regulations," although outpatient regulations do require separately identifiable staff.  However, using one receptionist would not be considered a regulatory violation, so long as OMH requirements for fingerprinting had been met.   From OMH’s perspective, if an employee’s job description is to register people who show up for care at both facilities and direct them to their appointment, then that person is providing an administrative function and has a need to know the information.  The employee would need to get HIPAA training, and should treat each person who shows up discreetly so as to avoid making direct disclosures and to limit indirect disclosures.    OASAS agrees with the OMH perspective as described here, so long as the employee is also provided confidentiality training on 42 CFR Part 2 and prohibition on re-disclosures.     
  1. Can regulations be amended to combine Quality Assurance procedures and place a chemical dependency Outpatient Clinic staff person on OMH Quality Assurance Review Teams?  When Critical Incidents occur and must be reviewed to determine how to improve care, it would be helpful to have a combined chemical dependency/mental health discussion, especially in those instances when an investigation involves an individual who has been involved with both programs.
  1. This seems miscast as a regulatory burden because it does not appear that either OASAS or OMH regulations would necessarily prohibit this action.   The strategy of integrating treatment in both an OASAS and OMH clinic location may mitigate the need to have people enrolled in multiple programs.  In any event, the ability to consult with a chemical dependency program in the context of an incident review could likely be done without regulatory revision. This could probably be accomplished on a consult basis through execution of some confidentiality agreements (perhaps a Business Associate/Qualified Service Organization Agreement) to facilitate quality assurance.  We would recommend that this be done on a case by case basis, and only when the input and particular expertise of the chemical dependency program is directly relevant to the review.   
  1. Can regulations be waived or modified to permit a chemical dependency program to notify a mental health program (or vice versa) of medication management services provided a co-enrolled client?  
  1. Regulations do not necessarily bar the ability to do this.   Depending on the circumstances, patient consent could be obtained to permit disclosures.  Neither OMH nor OASAS has the ability to waive federal confidentiality laws (42 CFR Part 2 or HIPAA) or MHL Section 33.13.   Voluntarily adhering to the most strict standard may impede other critically important program responsibilities (e.g., Jonathan’s Law, Kendra’s law).  Integrated treatment within one program would mitigate this concern.

IV.  Medicaid/Billing Issues:

  1. Can regulations be revised to permit providers to bill more than one Medicaid service on the same day, if this is clinically and fiscally indicated and consistent with the client's treatment plan as currently updated ?
  1. A provider of services can only bill for one Medicaid service per day per visit.  A patient could receive a service from an MH provider and an OASAS provider on the same day and each provider could bill Medicaid for the service they provided to the patient. If a provider has both an OMH operating certificate and an OASAS operating certificate, current regulations would not prevent the provider from submitting a bill for both an OASAS service and an OMH service on the same day, provided that all service requisites were met to justify each bill. 

    Again, however, dual enrollment is not a prerequisite for effectively providing necessary services to individuals with co-occurring disorders, and would not be necessary if the integrated treatment approach that is currently sought were utilized.  Nevertheless, this is not a significant barrier since dual enrollment and same day billing are possible, though attending two programs is often difficult for individuals with co-occurring disorders

  1. On our inpatient co-occurring disorder unit we can get some insurance coverage for patients if they come in with severe mental illness and substance use disorder and then they receive detoxification services. But if they come through with a primary need for detoxification third party insurance will not cover it because we are a psychiatric unit not a SUD rehabilitation unit.  Can regulations be amended so that insurance will cover either, regardless of  licensing?
  1. Changes in insurance coverage are outside the bounds of OASAS and OMH regulatory control, and is not a barrier to facilitating integrated treatment – on an inpatient unit as well as in an outpatient setting (which is the focus of the COD initiative).   The strategy under consideration would address the issue of integrated treatment, regardless of "which door" the patient entered.  From OMH’s perspective, OMH certified psychiatric units are not primary detoxification facilities.   The psychiatric units may provide detoxification as a necessary service to someone in need of, and admitted for inpatient mental health care under Article 9 of the Mental Hygiene Law.  However, the necessity for admission must meet Article 9 admission criteria.  Similarly, someone admitted to a facility subject to Articles 22 and 32 of the Mental Hygiene Law could also receive services to treat a co-occurring mental illness as necessary.   However, what insurance companies will contract to pay for is a separate issue not within either agency’s control.

V.  Physical Plant Issues:

  1. OASAS regulations at Part 822 contain a separate space requirement for a dual clinic.  Can these regulations be modified? We have been told that offices, bathrooms, and even bulletin boards need to be separate (OMH/OASAS) which really make things a challenge?
  1. OASAS and OMH regulations do not prevent the ability of programs to co-locate. There are current examples of OMH and OASAS certified outpatient programs at a single site.  However, each set of regulations has its own physical plant, premises, and other requirements which must be met.  If there was a specific project under review, an area to explore would be to permit the waiver of certain physical plant or space requirements in co-located situations, provided certain conditions are met.  OMH is in the process of developing a waiver regulation; OASAS already has the ability to issue regulatory waivers.  Integrated treatment within one program would mitigate this concern.

    In addition, 14 NYCRR Section 814.6 (a)(2) would allow space to be shared as long as all treatment staff have schedules for individual rooms so simultaneous use does not occur. 

  1. Can regulations be changed so that clients who are enrolled in an OASAS Intensive Residential Treatment program can also attend an OASAS Outpatient 822 chemical dependency program that offers treatment for co-occurring disorders?  Alternatively, more fiscal support needs to be provided to the Intensive Residential Treatment programs so that they can incorporate medication and treatment management for persons with co-occurring disorders.
  1. OASAS certifies intensive treatment programs to provide holistic chemical dependence treatment.  OASAS has reviewed the request to allow for dual enrollment in an intensive residential treatment program and an 822 outpatient clinic and has issued Local Services Bulletin 2007-04 prohibiting dual enrollment.

    However, OASAS’ Part 819 regulations for Intensive Residential Services require the residential provider to have agreements with other providers of services to meet residents’ needs.  Therefore, the provider may manage the co-occurring disorder (assuming appropriate staffing) or coordinate care with an outpatient mental health provider.