HOME    SEARCH    ABOUT US    CONTACT US    HELP   
           
Montana Administrative Register Notice 37-726 No. 18   09/24/2015    
Prev Next

 

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I through XVIII and the amendment of ARM 37.106.1901, 37.106.1902, and 37.106.1906 pertaining to adding a forensic mental health facility endorsement to a licensed mental health center

)

)

)

)

)

)

)

NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

TO: All Concerned Persons

 

          1. On October 14, 2015, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption and amendment of the above-stated rules.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on October 7, 2015, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

3. The rules as proposed to be adopted provide as follows:

 

NEW RULE I PURPOSE (1)  These rules establish minimum standards for a licensed mental health center to operate a secured forensic mental health facility (FMHF) for adults who are committed for custody, care, treatment, or evaluation pursuant to Title 46, chapter 14, MCA, or who are inmates of a correctional facility receiving treatment in a separate mental health setting.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

NEW RULE II APPLICATION OF RULES (1)  In addition to the requirements established in this subchapter, a licensed mental health center operating a forensic mental health facility (FMHF) must have an FMHF program endorsement issued by the department.  To receive an FMHF program endorsement, the licensed mental health center must establish, to the department's satisfaction, that it meets the requirements stated in these rules.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

NEW RULE III  SCOPE (1) A forensic mental health facility (FMHF) of a licensed mental health center provides twenty-four hour, seven days a week, secured nonhospital-based forensic mental health services for adults who are:

          (a) committed to a mental health facility for evaluation of fitness to proceed pursuant to 46-14-202(2), MCA;

          (b) committed to the custody of the director of the department to be placed for treatment to gain fitness to proceed pursuant to 46-14-221, MCA;

          (c) committed to the custody of the director of the department to be placed for custody, care, and treatment under 46-14-301, MCA;

          (d) admitted to an FMHF under a court order for a mental evaluation to be included in a pre-sentence investigation under 46-14-311, MCA;

          (e) sentenced to be committed to the custody of the director of the department to be placed for custody, care, and treatment under 46-14-312, MCA;

          (f) in the custody of the Department of Corrections and transferred to an FMHF under 53-21-130, MCA, or accepted for voluntary admission following such a transfer under 53-21-111, MCA; or

(g) committed to the Montana State Hospital under 53-21-127, MCA, while serving a sentence at a correctional facility.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

NEW RULE IV APPLICATION OF OTHER RULES (1) In addition to the requirements established in this subchapter, each licensed mental health center operating a forensic mental health facility (FMHF) must comply with all the requirements established in ARM Title 37, chapter 106, subchapter 3, with the exception of ARM 37.106.302 and 37.106.316.

(2)  To the extent that other licensure rules in ARM Title 37, chapter 106, subchapter 3 conflict with the terms of this subchapter, the terms of this subchapter will apply to an FMHF.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

NEW RULE V DEFINITIONS (1) "Adult" means an individual 18 years of age and older.

(2) "Emergency situation" has the meaning given to it by 53-21-102, MCA.

(3) "Forensic mental health services" means mental health services for persons referred for care, custody, treatment, or evaluation by or through the criminal justice system.

(4) "Immediate emergency" means a situation involving a client that jeopardizes the immediate physical safety of a client, a staff member, or others.

          (5) "Involuntary medication" means medication administered to a client when one or more of the following circumstances are present:

(a) administration of medication is against the specific wish of a client, made evident by verbal or nonverbal behavior reasonably interpreted as an objection;

(b) a client who does not have a legally appointed guardian lacks capacity to give informed consent; or

(c) a client's legally appointed guardian cannot or will not give consent.

(6) "Licensed health care practitioner" means a licensed physician, physician assistant, or advanced practice registered nurse who is practicing within the scope of the license issued by the Department of Labor and Industry under Title 37 of the MCA.

(7) "Licensed health care professional" means a licensed physician, physician assistant, advanced practice registered nurse, or registered nurse who is practicing within the scope of the license issued by the Department of Labor and Industry under Title 37 of the MCA.

(8) "Medication administration" means an act in which a prescribed drug or biological is given to a client by an individual who is authorized under state laws and regulations governing such acts.

          (9) "Restraint" means:

(a) any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a client to move his or her arms, legs, body, or head freely;

(b) a drug or medication when it is used to restrict the patient's behavior or freedom of movement and is not a standard treatment or dosage for the patient's condition;

          (c)  restraint does not include devices, such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets, or other methods that involve the physical holding of a client for the purpose of conducting routine physical examinations or tests, or to protect the client from falling out of bed, or to permit the client to participate in activities without the risk of physical harm (this does not include a physical escort); or

          (d) restraint does not include medications administered during an immediate emergency which are individually prescribed to assist a client to regain control of the client's dangerous behavior.

(10) "Sally port" means a secure entry way that consists of a series of doors or gates.

(11) "Seclusion" means the involuntary confinement of a client alone in a room or area from which the client is physically prevented from leaving. Confining clients to his or her bedrooms during medication administration, shift changes, or facility emergencies does not constitute seclusion for the purposes of this rule.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          NEW RULE VI CONSTRUCTION REQUIREMENTS (1) Prior to construction or operation of a forensic mental health facility (FMHF), floor plans for the FMHF must be submitted to the department for review, comment, and approval. The department must also inspect and approve any new construction or any addition or alteration to an FMHF prior to occupancy.

          (2) Prior to occupancy of an FMHF, or any addition or alteration to an FMHF, the FMHF must undergo an onsite inspection and receive the approval of the department's License Bureau, Construction Consultant.

(3) Any building used as an FMHF must be classified at a minimum as International Conference of Building Officials (ICBO) Construction type I-FR, or greater.

(4) All areas of an FMHF must be protected by automatic fire suppression. In unsupervised client areas, sprinkler heads must be recessed or of a design to restrict client access. An FMHF must provide the following:

(a) an operable UL listed fire alarm system with automatic response notification on alarm; and

(b) supervised smoke detectors throughout the facility reporting to the fire alarm system.

(5) An FMHF must meet the water supply system requirements of ARM 37.111.115.

(6) An FMHF must meet the sewage system requirements of ARM 37.111.116.

(7) An FMHF must have a double fence installed around any client accessible area.

(8) Each fence must be a minimum of 12 feet high, and

(a) have unclimbable security mesh fabric installed on the top five feet;

(b) have concertina wire installed on the top; and

(c) be buried 18 inches below grade.

(9) There must be a minimum 12 feet between the two fences that is free of all above ground obstructions.

(10) An FMHF must have an outside assembly area of refuge for facility evacuation during an emergency. The area must be:

(a) fenced and secured and large enough to safely hold all clients and staff; and

(b) far enough from the building to be considered a safe public way.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-201, 50-5-204, MCA

 

NEW RULE VII SECURED UNITS (1) A forensic mental health facility (FMHF) must have one or more separate secured unit(s) within the facility for housing clients that includes bedrooms and common space.

(2) A secured unit must be staffed at all times clients are present in the unit.

(3) A secured unit must have a staff station to include the following:

(a) provisions for charting;

(b) provisions for hand washing;

(c) provisions for secured medication storage and preparation; and

(d) telephone access.

(4)  A secured unit must have access to a nourishment station or to a kitchen that must include the following:

(a) a work counter;

(b) a refrigerator;

(c) storage cabinets;

(d) a sink;

(e) space for trays and dishes used for nonscheduled meal service;

(f) hand washing facilities immediately accessible to clients and staff; and

(g) ice for client consumption provided by icemaker-dispenser units or periodically made available during the day.

(5) A common space within each secured unit must be provided at a ratio of 35 square feet per client.

(6) The corridors of a secured unit must have general illumination with provisions for reducing light levels at night.

(7) No more than one client must reside in a bedroom.

(8) Client bedrooms must be at a minimum of 70 square feet and must include the following:

(a) a bed with a waterproof mattress;

(b) a small wardrobe, dresser, shelves, or bed compartment for storage of clients' personal items;

(c) general lighting and night lighting, control for night lighting may be located outside the room at the room entrance;

(d) electrical outlets that are tamper-resistant and GFI-protected, outlets may be controlled from outside of the room;

(e) a window with a minimum of 248 square inches of glazing which must be designed to limit the opportunity for clients to inflict serious harm as a result of breaking the window and using pieces to inflict harm on themselves or others. Windows:

(i) must be of tempered glass or laminated safety glass to resist impact loads; and

(ii)  if operable, must have security locks.

(9) Sinks and toilets may be provided in client rooms. The fixtures may be controlled from outside of the room.

(10) An FMHF must not use automatic door closures unless required. If required, such closures must be mounted on the public side of the door within view of a staff work station or under video surveillance.

(11) An FMHF must use doors that:

(a) have door hinges designed to minimize points for hanging (i.e., cut hinge type); and

(b) have tamper-resistant fasteners.

(12) An FMHF must provide:

(a) at least one toilet for every eight clients;

          (b) at least one bathing unit for every twelve clients, a shower or tub is not required if the FMHF utilizes a central bathing unit for all clients; and

          (c)  doors to toilet rooms or bathing units that swing out or slide into the wall and which must be capable of being unlocked from the outside.

(13) Toilet rooms and bathing units may be under key control by staff.

(14) An FMHF must not use towel bars, clothing rods, hooks, or lever handles.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-201, 50-5-204, MCA

 

NEW RULE VIII COMMON USE AREAS (1) A forensic mental health facility (FMHF) must have an area for social activities at a minimum of 25 square feet per client.

(2) An FMHF must have a quiet area for clients to utilize according to facility policy.

(3) An FMHF must have a dining space at a minimum of 35 square feet per client. The dining space may be located off a secured unit in a central area.

(4) An FMHF must have a minimum of two classrooms with work tables or desks for client use.

(5) If an FMHF has a vocational training area, it must be equipped with appropriate tools and code-compliant equipment for client use.

(6) An FMHF must have a gymnasium and a separate client exercise room which includes appropriate exercise equipment in sufficient quantity for client use.

(7) An FMHF must have a secured outside recreational exercise area with both an enclosed individual client area and a large fenced group area.

(8) An FMHF must have examination or treatment rooms for private consultation. These rooms must have at a minimum the following:

(a) 100 square foot floor area;

(b) a hand-washing station;

(c) storage facilities; and

(d) a desk, counter, or shelf space for writing or electronic documentation.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-201, 50-5-204, MCA

 

          NEW RULE IX OBSERVATION AND SECLUSION ROOM(S) (1) A forensic mental health facility must designate specific room(s) designed for observation, seclusion, and restraint purposes.

          (2) The location of these rooms must facilitate staff observation and monitoring of clients in these areas.

          (3) The room must be equipped with video and audio monitoring equipment.

          (4) The room must have a minimum of 60 square feet and a ceiling height of nine feet. Ceilings in seclusion rooms must be monolithic.

(5) Rooms used for observation, seclusion, and restraint must be designed to prevent injury to clients. All finishes, light fixtures, vents and diffusers, and sprinklers must be tamper resistant. These rooms must not have: electrical outlets, medical gas outlets or similar devices; sharp corners, edges, or protrusions. The wall must be free of objects or accessories of any kind. Doors must swing out or be a slide in pocket door and have hardware on the exterior side only. The door must be a minimum width of 44 inches and include an impact resistant view panel for discreet staff observation of the client. The use of impact resistant one-way observation windows is permitted.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-201, 50-5-204, MCA

 

          NEW RULE X WRITTEN POLICIES AND PROCEDURES (1) As required in ARM 37.106.1908, a forensic mental health facility (FMHF) must maintain a policy and procedure manual. The policy and procedure manual must be reviewed and updated as necessary, but at a minimum annually.

          (2)  In addition to the other requirements of ARM 37.106.1908, the manual must include policies and procedures for:

          (a) security;

          (b) involuntary administration of medication;

          (c) client discharge and transfer procedure;

          (d) client rights and grievances;

          (e) client admission criteria;

          (f) restraint and seclusion;

          (g) establishing fiscal policies governing the management of organizational and individual funds;

          (h) establishing and maintaining staffing requirements;

          (i) informing clients of policies pertaining to the FMHF;

          (j) food services; and

          (k) the detection, reporting, and investigation of abuse and neglect.

(3)  The policy and procedure manual must include a current organizational chart delineating the current lines of authority, responsibility, and accountability for the administration and provision of all FMHF client treatment programs and services.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

NEW RULE xi Security (1) A forensic mental health facility (FMHF) must develop security policies and procedures. At a minimum the policies and procedures must address the following:

(a) securing the facility;

(b) summoning outside assistance in the event of an emergency;

(c) addressing relevant types of natural or client-caused emergency situations; and

(d) contraband searches.

(2) An FMHF must have security vestibules or secured car ports or Sally Ports at all facility entrances.

(3) An FMHF security system must be capable of containing clients within secured units when necessary according to FMHF policy.

(4) An FMHF security system must be designed to prevent contraband smuggling and must include provisions for monitoring and controlling visitor access and egress.

(5) All openings into and out of and within the FMHF, e.g., windows, doors, and gates, must be equipped with manual, electric, or magnetic locks.

(6) An FMHF must provide visual control, i.e., electronic surveillance, of all FMHF corridors, dining areas, classrooms, and social areas.

(7) Except for use in seclusion or observation rooms, electronic surveillance is not permitted in client bedrooms, bathing units, or toilets.

(8) Electronic surveillance of a secured unit does not substitute for direct supervision where required by facility policy.

(9) Special design considerations for injury or suicide prevention must be given to all facility details, finishes, and equipment.

          (10) An FMHF must provide an enclosed secured car port for the receiving, discharge, transfer, or the transportation of clients.  The car port must be separated using Underwriters Laboratory or Factory Mutual rated construction providing a minimum of two-hour fire resistance.

(11) Staff may confine clients to their rooms for all scheduled medication passes, for all staff shift changes, and during any facility emergency. Shift changes will last no longer than 30 minutes, and must be limited to no more than three changes in a 24-hour period.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-201, 50-5-204, MCA

 

          NEW RULE XII INVOLUNTARY MEDICATION ADMINISTRATION (1) A forensic mental health facility (FMHF) must develop and implement a policy for involuntary medication administration that includes:

          (a) procedures for use in an immediate emergency or an emergency situation to ensure the physical safety of the client, a staff member, or others;

          (b) an administrative review process for use when involuntary medication is clinically indicated for a client who is gravely disabled or poses a likelihood of serious harm to themselves, others, or property as a result of a mental disease or disorder. The process must include:

          (i) a formal review within five working days of beginning the involuntary administration of medication, by a medication review committee which includes the medical director of the FMHF, the designee, or both and at least one qualified psychiatrist who is not employed at the FMHF. No committee member may be directly involved in the client's care;

          (ii) an opportunity for the client to appear before the panel in person and with a representative of the client's choice, and to provide testimony and evidence;

          (iii) written advance notice of the review and the right to participate which must be given to the client, guardian, and Mental Disabilities Board of Visitors;

          (iv) an opportunity for review of the decision of the panel by the director of the licensed mental health center;

          (v) review by the committee at 14 and 90 days after the initial authorization of involuntary administration of medication.

          (c) procedures for seeking and implementing a court order authorizing involuntary administration of medication for clients who are placed at the FMHF under 46-14-221, MCA, and for whom the sole purpose of involuntary medication is to gain fitness to proceed.

          (2) Attempts must be made to administer medications with the full consent of the client receiving those medications. Such attempts must be documented.

          (3) Involuntary medications must be discontinued when no longer necessary as determined by a licensed health care practitioner.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          NEW RULE XIII RESTRAINT AND SECLUSION (1) A forensic mental health facility (FMHF) must be capable of providing restraint or seclusion and must ensure that such restraint or seclusion is performed in compliance with 53-21-146, MCA.

          (2) The use of medication solely for restraint is prohibited.

          (3) Restraint or seclusion may only be used when less restrictive interventions have been determined to be ineffective to protect the client, staff, or others from harm.

          (4) The type and technique of restraint or seclusion must be the least restrictive intervention that will be effective to protect the client, staff, or others from harm.

          (5) The use of restraint or seclusion must be implemented in accordance with safe and appropriate restraint and seclusion techniques as determined by facility policy.

          (6) Orders for the use of restraint or seclusion must never be written as a standing order or on an as-needed basis (PRN).

          (7) A licensed health care practitioner must authorize use of the restraint or seclusion within one hour of initiating the restraint or seclusion. Before a licensed health care practitioner may authorize restraint or seclusion, the licensed health care practitioner must see the client face-to-face within one hour of the initiation of restraint or seclusion to evaluate:

          (a) the client's immediate situation;

          (b) the client's reaction to the intervention;

          (c) the client's medical and behavioral condition; and

          (d) the need to continue or terminate the restraint or seclusion.

          (8) Each original order and renewal order authorizing the use of restraint or seclusion is limited to eight hours, up to a total of 24 hours. After 24 hours and before writing a new order, a licensed health care practitioner must see and assess the client.

          (9) Restraint or seclusion must be discontinued at the earliest possible time, regardless of the length of time identified in the order.

          (10) A licensed health care professional must monitor the condition of the client who is restrained or secluded at an interval determined by facility policy.

          (11) Each incident of restraint or seclusion must be documented in the client's medical record and must include:

          (a) each order and renewal order;

          (b) the one-hour face-to-face medical and behavioral evaluation;

          (c) a description of the client's behavior and the intervention used;

          (d) start and end times of the restraint or seclusion and the names of staff implementing interventions;

          (e) alternatives or other less restrictive interventions attempted, as applicable;

          (f) the client's condition or symptom(s) that warranted the use of restraint or seclusion;

          (g) the client's response to the intervention(s) used, including the rationale for continued use of the intervention; and

          (h) monitoring of the client in restraint or seclusion as required by facility policy.

          (12) Staff must be trained and able to demonstrate competency in the application of restraints, implementation of seclusion, monitoring, assessment, and providing care for a client in restraint or seclusion. The training must include:

          (a) techniques to identify staff and client behaviors, events, and environmental factors that may trigger circumstances that require the use of a restraint or seclusion;

          (b) the use of nonphysical interventions skills;

          (c) choosing the least restrictive interventions based on an individual assessment of the client's medical or behavioral status or condition;

          (d) the safe application and use of all types of restraint or seclusion used in the facility, including training in how to recognize and respond to signs of physical and psychological distress; and

          (e) clinical identification of specific behavioral changes that indicate restraint or seclusion is no longer necessary.

          (13) Staff must receive training prior to performing any actions specified in this rule and annually thereafter.

(14) An FMHF must document in the staff personnel records that training and demonstration of competency was successfully completed.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          NEW RULE XIV STAFFING REQUIREMENTS (1) Employees of a forensic mental health facility (FMHF) must be 18 years of age and possess a high school diploma or general equivalency diploma (GED) at a minimum.

          (2) Employees must receive orientation and training in areas relevant to the employee's duties and responsibilities including:

          (a) an overview of the FMHF policy and procedure manual in areas relevant to the employee job responsibilities;

          (b) a review of the employee job description;

          (c) services provided by the facility;

          (d) rights of persons served; and

          (e) safety and emergency response procedures.

          (3) All direct-care staff must receive full orientation before providing direct client care or treatment. In addition to meeting these requirements, direct-care staff must be trained to perform the services established in each client's treatment plan.

          (4) Direct-care staff must have knowledge of each client's needs and any events about which the employee should notify the administrator or the administrator's designated representative.

          (5) An FMHF must have a sufficient number of qualified staff on duty 24 hours a day to meet the scheduled and unscheduled needs of each client, to respond in emergency situations, and to provide all related services including:

          (a) maintenance of order, safety, and cleanliness;

          (b) assistance with medication regimens;

          (c) preparation and service of meals;

          (d) housekeeping services and assistance with laundry; and

          (e) assurance that each client receives the supervision and care required by the treatment plan.

          (6) Site-based supervisors must be on-duty 24 hours a day, seven days per week.

          (7) An FMHF must be staffed by a registered nurse (RN) 24 hours a day, seven days per week. The RN may also serve as a supervisor.

          (8) An FMHF must provide access to ancillary services such as laboratory or radiological services directly or by contracting with a facility licensed to provide such services.

          (9) An FMHF must have a sufficient number of qualified licensed mental health professionals on staff to meet the needs of the clients as outlined in facility policies and the clients' individualized treatment plans.

          (10) An individual on each work shift must have keys to all relevant client care areas and access to all items needed to provide appropriate client treatment and care.

(11) An FMHF must provide ongoing staff training a minimum of 20 hours annually.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

NEW RULE XV  CLIENT ADMISSION (1)  A forensic mental health facility (FMHF) must develop and implement a written policy regarding admission into the facility for the persons identified in [New Rule III]. The policy must include a screening process to identify and exclude from admission persons who need a hospital level of care.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          NEW RULE XVI CLIENT DISCHARGE AND TRANSFER (1) A forensic mental health facility (FMHF) must develop and implement a discharge and transfer policy for discharging a client from the FMHF to another facility.

          (2) The policy must include procedures for secure transportation of clients.

(3) The facility must ensure coordinated transfers with other licensed health care facilities or correctional facilities.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          NEW RULE XVII CLIENT RIGHTS AND GRIEVANCES (1) Clients admitted to a forensic mental health facility (FMHF) must be afforded all of the rights provided for persons admitted to a mental health facility in Title 53, chapter 21, part 1, MCA.

          (2) A copy of these rights must be posted in each secure unit of the facility.

          (3) These rights must also be explained at the time of admission to the client in terms that the client can understand.

          (4) An FMHF must develop a written client grievance policy to include:

          (a) procedures for the submission of client's written or verbal grievance to the FMHF;

          (b) time frames in which the FMHF must review a grievance and reach a decision;

          (c) a process for providing the client with written notice of the decision that contains:

          (i) the name of the facility contact person;

          (ii) the steps taken on behalf of the client to investigate the grievance;

          (iii) the results of the grievance process; and

(iv) the date of completion.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          NEW RULE XVIII FOOD SERVICE (1) A forensic mental facility (FMHF) must establish and maintain standards relative to food sources, refrigeration, refuse handling, pest control, storage, preparation, procuring, serving, handling food, and dish washing procedures that are sufficient to prevent food spoilage and the transmission of infectious disease. These standards must include the following:

          (a) a requirement that food must be obtained from sources that comply with all laws relating to food and food labeling;

          (b) a prohibition of the use of home-canned foods;

          (c) a requirement that food subject to spoilage is removed from its original container and kept sealed, labeled, and dated.

          (2) Foods must be served in amounts and with enough variety to meet the nutritional needs of each client. An FMHF must provide therapeutic diets when prescribed by the client's practitioner. At least three meals must be offered daily and at regular times, with not more than a 12-hour span between an evening meal and breakfast unless a nutritious snack is available in the evening, then up to 16 hours may lapse between a substantial evening meal and breakfast.

          (3) Records of menus as served must be filed on the premises for three months after the date of service.

          (4) An FMHF must have an approved dietary manual for reference when preparing meals for clients requiring therapeutic or special diets. Dietitian consultation must be provided as necessary and documented for clients requiring therapeutic or special diets.

          (5) Potentially hazardous food, such as meat and milk products, must be stored at 41° F or below. Hot food must be kept at 140° F or above during preparation and serving.

          (6) Freezers must be kept at a temperature of 0° F or below and refrigerators must be kept at a temperature of 41° F or below. Thermometers must be placed in the warmest area of the refrigerator and freezer to ensure proper temperature. Temperatures must be monitored and recorded at least once a month and records must be maintained at the facility for one year.

          (7) Employees must maintain a high degree of personal cleanliness and must conform to good hygienic practice and food handling requirements when working in food service.

(8) Food service employees must not work in the FMHF food service area while infected with a communicable disease that can be transmitted by foods.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

          37.106.1901 MENTAL HEALTH CENTER: APPLICATION OF OTHER RULES (1) To the extent that other licensure rules in ARM Title 37, chapter 106, subchapters 3, 4, 6, 10, 11, 14, 15, 22 and 23 conflict with the terms of this subchapter, the terms of this subchapter will apply to licensed mental health centers.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          37.106.1902 MENTAL HEALTH CENTER: DEFINITIONS In addition to the definitions in 50-5-101, MCA, the following definitions apply to this subchapter:

          (1) through (8) remain the same.

          (9) "Department" means the Department of Public Health and Human Services.

          (10) "Forensic mental health facility" (FMHF) means 24-hour, seven days a week, secured nonhospital-based forensic psychiatric treatment for adults who are committed by a court of competent jurisdiction for the purpose of psychiatric treatment or evaluation.

          (9) through (14) remain the same, but are renumbered (11) through (16).

          (15) (17)  "Licensed health care professional" means a licensed physician, physician assistant, -certified, or advanced practice registered nurse, or registered nurse who is authorized to prescribe medication practicing within the scope of the license issued by the Department of Labor and Industry.

          (16) through (30) remain the same, but are renumbered (18) through (32).

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          37.106.1906 MENTAL HEALTH CENTER: SERVICES AND LICENSURE

          (1) through (3) remain the same.

          (4) A licensed mental health center, with the appropriate license endorsement, may provide one or more of the following services:

          (a) through (g) remain the same.

          (h) an outpatient crisis response facility; or

          (i) a comprehensive school and community treatment program.; or

          (j) a forensic mental health facility.

          (5) through (8) remain the same.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

          5. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) proposes to adopt New Rules I through XVIII establishing new minimum standards for the endorsement of a forensic mental health facility within a licensed mental health center. As part of the establishment of the new standards, the department proposes to amend ARM 37.106.1901, 37.106.1902, and 37.106.1906 in order to add definitions and implement the new rules for a forensic mental health center endorsement.

 

Currently the department provides forensic mental health services on the forensic unit, referred to as D Wing, at the Montana State Hospital (MSH). D Wing is a part of MSH and it is licensed by the department as a psychiatric hospital. MSH is also a licensed mental health center.

 

The MSH D Wing houses residents who are:

 

(a) committed to a mental health facility for evaluation of fitness to proceed pursuant to 46-14-202(2), MCA;

 

(b)  committed to the custody of the director of the department to be placed for treatment to gain fitness to proceed pursuant to 46-14-221, MCA;

 

(c) committed to the custody of the director of the department to be placed for custody, care, and treatment pursuant to 46-14-301, MCA;

 

(d) admitted to an FMHF pursuant to a court order for a mental evaluation to be included in a pre-sentence investigation pursuant to 46-14-311, MCA;

 

(e)  sentenced to be committed to the custody of the director of the department to be placed for custody, care, and treatment pursuant to 46-14-312, MCA;

 

(f) in the custody of the Department of Corrections and transferred to an FMHF pursuant to 53-21-130, MCA, or accepted for voluntary admission following such a transfer pursuant to 53-21-111, MCA; or

 

(g) committed to the Montana State Hospital pursuant to 53-21-127, MCA, while serving a sentence at a correctional facility.

 

MSH does not have the option to refuse to admit persons committed to the department for forensic mental health services through the criminal justice system.

 

The D Wing is exceeding its licensed capacity. Although staffing on D Wing is adjusted to maintain appropriate resident-to-patient ratios, the crowded conditions foster disruptive client behaviors. Safety of D Wing staff and clients is an ongoing concern for MSH. D Wing cannot offer single-occupancy bedrooms. D Wing does not have an area with the highest level of security, it does not separate men from women, and it does not separate types of forensic residents, such as, for example, separating people who are waiting for fitness-to-proceed evaluation from people committed to the facility because they have been found guilty of a crime, but have also been found mentally ill. In addition, D Wing maintains a waiting list for defendants who have been ordered to the department to receive a fitness-to-proceed evaluation, resulting in lengthy wait times in jail at city or county expense and disgruntled judges, county attorneys, defense attorneys, and defendants. There is no community setting in which to place D Wing residents.

 

For some time, the department has sought to remedy the D Wing overcrowding through the legislative process. This effort has been unsuccessful.   The need to expand the facilities available for forensic mental health services is great and growing. Therefore, the department has created a new endorsement under which a licensed mental health center can provide forensic mental health services to persons who do not need to be in a psychiatric hospital, but need to be in a secured setting. The requirements for the endorsement are intended to create a forensic mental health facility that will improve the current situation in D Wing and will address the facility issues with D Wing in terms of security, separation of residents, etc. The MSH D Wing will continue to house forensic residents.

 

New Rules I through XVIII

 

The department is proposing to adopt the following new rules in order to authorize the forensic mental health facility endorsement:

 

New Rule I - Purpose

 

New Rule II - Application of Rules

 

New Rule III - Scope

 

New Rule IV - Application of Other Rules

 

New Rule V - Definitions

 

New Rule VI - Construction Requirements

 

New Rule VII - Secured Units

 

New Rule VIII - Common Use Area

 

New Rule IX - Observation and Seclusion Rooms

 

New Rule X - Written Policies and Procedures

 

New Rule XI - Security

 

New Rule XII - Involuntary Medication Administration

 

New Rule XIII - Restraint and Seclusion

 

New Rule XIV - Staffing Requirements

 

New Rule XV - Client Admission

 

New Rule XVI - Client Discharge and Transfer

 

New Rule XVII - Client Rights and Grievances

 

New Rule XVIII - Food Service

 

ARM 37.106.1901

 

The department is proposing to remove the subchapters that do not apply to mental health centers.

 

ARM 37.106.1902

 

The department proposes to add two definitions to this rule, one defining our agency and the other adding the new definition for a "forensic mental health facility."

 

The department proposes to revise the definition of "licensed health care provider" to be consistent with language in statute.

 

The department proposes to remove the term "seclusion" from the definition section for all mental health centers and place in the definition section for "forensic mental health facility." Seclusion is not permitted for all mental health center programs and will only be permitted in a "forensic mental health facility."

 

ARM 37.106.1906

 

The department is proposing to add the new term "forensic mental health facility" to the list of services that a mental health center may provide with the appropriate license endorsement.

 

Fiscal Impact

 

Programs affected include the Quality Assurance Division and the Addictive and Mental Disorders Division which are 100% general funded. There is no mandate that any mental health center provider must implement or provide these services as part of their mental health center licensure; therefore, the FMHF rule has minimal fiscal impact.

 

          6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., October 22, 2015.

 

7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption and amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

12. Section 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement.  The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.

 

The department has determined that the proposed program changes presented in this notice are not appropriate for performance-based measurement and therefore are not subject to the performance-based measures requirement of 53-6-196, MCA.

 

 

/s/ Susan Callaghan                              /s/ Richard H. Opper                            

Susan Callaghan, Attorney                    Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services

 

 

Certified to the Secretary of State September 14, 2015.

 

 

Home  |   Search  |   About Us  |   Contact Us  |   Help  |   Disclaimer  |   Privacy & Security