Proposed Amendments to the Mental Hygiene Law: Increased Training and Reporting Requirements for Boards of Directors and Trustees

Kelley Drye Client Advisory

On May 20, 2009, Senator Shirley Huntley introduced Senate Bill 5596 (“SB 5596”), which proposes several amendments to New York’s Mental Hygiene Law. If the bill passes, voluntary not-for-profit agencies under the jurisdiction of the Office of Mental Health (“OMH”), the Office of Mental Retardation and Developmental Disabilities (“OMRDD”), and the Office of Alcoholism and Substance Abuse Services (“OASAS”) will be subject to increased training and reporting requirements regarding their boards of directors. The bill aims to address perceived concerns regarding safety, quality of care, and fiscal mismanagement. A similar bill was proposed in 2008, but was vetoed by Governor David Paterson due to concerns that parts of the bill were overly broad, unrealistic, or redundant. The new bill has been rewritten in response to Governor Paterson’s concerns. Kelley Drye & Warren’s Labor & Employment attorneys are well-equipped to assist your organization in implementing the new policies if and when this bill passes.

What Organizations Are Affected?

The new regulations will apply to any voluntary, not-for-profit corporation or facility which:

  • is licensed by, funded by, or under contract with:
    • the Office of Mental Health; or
    • the Office of Mental Retardation and Developmental Disabilities; or
  • has been issued an operating certificate by or has received funding from:
    • the Office of Alcoholism and Substance Abuse Services

The new requirements are the same for all covered agencies, regardless of which office has jurisdiction. The bill specifically excludes Article 28 hospitals, as they are already governed by similar regulations promulgated by the Department of Health (“DOH”).

New Requirements

Training Requirements
By October 31, 2010, OMH, OMRDD, and OASAS will establish minimum training requirements for all members of the boards of directors or trustees of covered agencies. Among other areas, the training must cover ​“the fiduciary responsibilities of being a board member or trustee and shall provide members with the tools and best practices necessary to effectively serve in such capacity.” SB 5596 §§ 2, 3, 5. Currently, no minimum training requirements are established.

Reporting Requirements
Once the new regulations become effective, the director, chairperson, or president of a covered agency must provide an annual list to OMH, OMRDD, or OASAS, including:

  • The names and addresses of the current members of the board of directors or trustees; and
  • The last date that each member or trustee completed the training requirements.

SB 5596 §§ 2, 3, 5.

The law currently requires an annual list with only the names and addresses of board members and trustees.

Emergency Preparation
The commissioners of OMH, OMRDD, and OASAS shall issue rules and regulations that will require the boards of directors of covered agencies to

adopt policies and guidelines with regard to operating procedures in the event of emergency situations affecting the health or safety of individuals with disabilities served by the agency or the fiscal viability or integrity of the agency.
SB 5596 §§ 1, 4, 6.

Penalties

Corporations or facilities under the jurisdiction of OMH or OMRDD that fail to furnish the required annual list shall be removed from consideration for recertification. SB 5596 §§ 2, 3. Corporations under the jurisdiction of OASAS that fail to furnish the required annual list may be removed from consideration for recertification or refunding. SB 5596 § 5.

What Should You Do?

Senate Bill 5596 is currently before the Senate Committee on Mental Health and Developmental Disabilities. Be aware that if the bill passes, the new provisions will become effective on the 90th day after it becomes law. To comply with the new requirements, covered agencies should:

  • Become acquainted with the minimum training requirements that will be issued by OMH, OMRDD, and OASAS, and ensure that training is completed as soon as possible for all new board members, as well as existing members who have not yet completed comparable training.
  • Timely furnish to the commissioner of the relevant office an annual list of names, addresses, and training completion dates for all current board members and trustees.
  • Design and implement operating procedures to be used in emergency situations, or update existing operating procedures as necessary.