§ 9.51 Residential treatment facilities for children and youth;

admissions.

(a) The director of a residential treatment facility for children and
youth, as defined by section 1.03 of this chapter, may receive as a
patient a person under the age of twenty-one in need of care and
treatment in such a facility who has been determined appropriate for
such care and treatment in accordance with standards and priorities for
admission established by the office in regulations in accordance with
federal regulations.

(b) Persons admitted as in-patients to hospitals operated by the
office of mental health upon the application of the commissioner of the
office of children and family services pursuant to section five hundred
nine of the executive law or 353.4 of the family court act who are not
subject to a restrictive placement pursuant to section 353.5 of the
family court act, may, if appropriate, and subject to the provisions of
subdivision (d) of this section, be transferred to a residential
treatment facility for children and youth. The commissioner of the
office of children and family services shall be notified of any such
transfer. When appropriate, the director of the residential treatment
facility may arrange the return of a patient so transferred to the
hospital or the transfer of a patient to another hospital or, in
accordance with subdivision four of section five hundred nine of the
executive law to the commissioner of the office of children and family
services.

(c) The commissioner shall consult with the executive director of the
council on children and families regarding the establishment of an
advisory board. The advisory board shall include, as deemed appropriate
by the commissioner and the executive director of the council on
children and families, representatives of the members of the council on
children and families as specified in section four hundred eighty-three
of the social services law, local agency representatives under the
jurisdiction of a member agency of the council on children and families,
family representatives with lived experience with residential treatment
facility services, medical directors from residential treatment
facilities, and representatives from hospitals with pediatric inpatient
psychiatric beds, that is not operated by the state office of mental
health. Members of the advisory board shall be representative of the
racial, ethnic, and geographic diversity of the state. Such board shall
have the right to visit residential treatment facilities for children
and youth and shall have the right to review clinical records and shall
be bound by the confidentiality requirements of section 33.13 of this
chapter. The advisory board shall issue an annual report on the
disposition of applications for admission to residential treatment
facilities. Such report shall include, but not be limited to: the number
of children that applied to each residential treatment facility, the
number of children admitted to each residential treatment facility, the
number of children transferred from a hospital operated by the office of
mental health and subsequently transferred to another hospital, the
average length of stay for residents at each residential treatment
facility, the number of children served at each residential treatment
facility, and the number of involuntary placements and/or transfers from
office of mental health operated inpatient facilities which occur each
calendar year. Such annual report shall be posted on the office of
mental health's website and submitted to the governor, the speaker of
the assembly and the temporary president of the senate by March first
for the previous calendar year.

(d) Applications for admission or transfer of an individual to a
residential treatment facility for children and youth must document that
there has been an evaluation of the needs of the individual and a
determination of the individual's need for treatment in a residential
treatment facility for children and youth and the appropriateness of
such treatment. In the case of individuals who are applicants or
recipients of medical assistance pursuant to title eleven of article
five of the social services law, such determination shall also include
certification of need for residential treatment facility services in
accordance with this section. Where certification is required, an
individual will be certified for admission if:

(1) Available ambulatory care resources and other residential
placements do not meet the treatment needs of the individual;

(2) Proper treatment of the individual's psychiatric condition
requires in-patient care and treatment under the direction of a
physician; and

(3) Care and treatment in a residential treatment facility for
children and youth can reasonably be expected to improve the
individual's condition or prevent further regression so that services
will no longer be needed, provided that a poor prognosis shall not in
itself constitute grounds for a denial of certification if treatment can
be expected to effect a change in prognosis. Decisions to recommend
admission or priority admission shall occur in consultation with the
residential treatment facility and be based on a determination of
appropriateness including consideration of facility staffing, patient
mix and acuity and the impact on the safety of other residents. In the
event the office evaluates a child who is the subject of a proceeding
currently pending in the family court, the office shall report its
decision to the family court. Prior to admission and no sooner than
fourteen days after admission, the office or its designee may evaluate
the medical necessity and quality of services for each Medicaid member.
If the office or its designee determines that residential treatment
services are no longer appropriate, the determination of the office or
its designee shall be reported to the facility and the person, or the
person's legally authorized representative. Such determination shall not
be effective retroactively.

No residential treatment facility for children and youth shall admit a
person who has not been determined appropriate and where appropriate,
certified for such admission. Residential treatment facilities shall
admit individuals who have been designated as priority admissions by the
office or commissioner's designee.

(e) Notwithstanding any inconsistent provision of law, no government
agency shall make payments pursuant to title nineteen of the federal
social security act or articles five and six of the social services law
to a residential treatment facility for children and youth for service
to a person whose need for care and treatment in such a facility was not
certified pursuant to this section.

(f) No person shall be admitted to a residential treatment facility
for children and youth who has a mental illness which presents a
likelihood of serious harm to others; "likelihood of serious harm" shall
mean a substantial risk of physical harm to other persons as manifested
by recent homicidal or other violent behavior by which others are placed
in reasonable fear of serious physical harm.

(g) Notwithstanding any other provision of law, the office or
commissioner's designee shall be entitled to review clinical records
maintained by any person or entity which pertain to an individual on
whose behalf an application is made for admission to a residential
treatment facility for children and youth. Any clinical records received
by the office or commissioner's designee shall be kept confidential in
accordance with the provisions of section 33.13 of this chapter.

Confidentiality of clinical records of treatment of a person in a
residential treatment facility for children and youth shall be
maintained as required in section 33.13 of this chapter. That portion of
the clinical record maintained by a residential treatment facility for
children and youth operated by an authorized agency specifically related
to medical care and treatment shall not be considered part of the record
required to be maintained by such authorized agency pursuant to section
three hundred seventy-two of the social services law and shall not be
discoverable in a proceeding under section three hundred fifty-eight-a
of the social services law or article ten-A of the family court act
except upon order of the family court; provided, however, that all other
information required by a local social services district or the office
of children and family services for purposes of sections three hundred
fifty-eight-a, four hundred nine-e and four hundred nine-f of the social
services law and article ten-A of the family court act shall be
furnished on request, and the confidentiality of such information shall
be safeguarded as provided in section four hundred sixty-e of the social
services law.