DMH proposes “Fresh Air” rights at psychiatric hospitals

Gov. Deval Patrick signed the “Fresh Air” bill into law this past January. The law, proposed by the Massachusetts Department of Mental Health, asserts that access to fresh air is a fundamental right, even for patients with mental health issues who are hospitalized.

While the spirit of the law is well intentioned, some individuals and advocacy groups are concerned about the letter of the law. In September, DMH held a hearing to receive comments from the general public on the regulations.

The Fresh Air regulations call for “reasonable daily access to the outdoors as weather conditions permit” and depend on assessment of the person’s clinical condition and safety by the treating clinician.

Also, the facility is responsible for providing safe access and creating a plan to ensure the safety of staff when they accompany the patient outdoors.

Nine individuals offered comments at the hearing, many of whom cited a number of limitations and loopholes to the law. DMH provided a transcript of the hearing.

Jonathan Dosick, coordinator of the fresh air bill efforts since its inception in 2003, noted that even though hospitals are asked to create a fresh air access plan, they are not bound by a time frame and will incur no penalties for failure to create the plan.

“But I also want to mention that hospitals and the organizations representing them have strongly and steadily opposed The Fresh Air Bill since the very beginning,” he testified. “So… I think it’s reasonable to ask how can we possibly expect them to voluntarily follow a new law which the essence of these regulations proposes.”

Lead investigator for the Disability Policy Consortium (DPC) Kimberely Warsett expressed concern over a payment mechanism for the law.
“The Disability Policy Consortium is calling for a review of the regulations so that all patients have the right to fresh air. Neuroscience and psychology have proven that fresh air works in helping people heal,” she said.

“The DPC would recommend a standard for determining financial ability to pay for the cost of opening fresh air space as a percentage of MassHealth payments or other state funding over the previous three years.

The investment that the Commonwealth makes in people’s health and the financial security of institutions should allow for an important feature of people’s treatment and should be a priority.”

And while facilities such as McLean Hospital are situated on beautifully landscaped grounds, David Matteodo, executive director, Massachusetts Association of Behavioral Health Systems, pointed out some psychiatric facilities, particularly city hospitals, house their patients on the eighth floor with no easy access to the outdoors.

He added that these hospitals are concerned that “…if the Department of Mental Health comes out with an unfunded mandate to have them provide the grounds…” it could lead to potential closure of the unit.

DMH provided a statement in defense of the regulations. “The Department of Mental Health strongly believes all patients have the right to fresh air. However, the law requires other factors, including the patient’s clinical condition and safety concern, be taken into consideration,” said Anna Chinappi, director, Office of Communications and Community Engagement at the Massachusetts Department of Mental Health.

“The proposed regulations were developed in consultation with stakeholders representing consumer advocates as well as providers. DMH welcomes public comment into its proposed regulations at the public hearing.”