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S05762 Floor Votes:

S05762 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5762--A
 
                               1999-2000 Regular Sessions
 
                    IN SENATE
 
                                      June 3, 1999
                                       ___________
 
        Introduced  by  Sens.  LIBOUS,  PADAVAN,  GOODMAN, -- (at request of the
          Governor) -- read twice and ordered printed, and when  printed  to  be
          committed  to  the  Committee  on  Rules -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee
 

        AN  ACT  to  amend  the mental hygiene law, in relation to enhancing the
          supervision and coordination of care of persons with mental illness in
          community-based settings by providing  assisted  outpatient  treatment
          and  to  amend  chapter 560 of the laws of 1994 amending the judiciary
          law and the mental  hygiene  law  relating  to  establishing  a  pilot
          program of involuntary outpatient treatment, in relation to the effec-
          tiveness  of  such  chapter  and  providing  for  the  repeal  of such
          provision on the expiration thereof
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.    This  act  shall be known and may be cited as "Kendra's
     2  Law".
     3    § 2. Legislative  findings.  The  legislature  finds  that  there  are

     4  mentally ill persons who are capable of living in the community with the
     5  help  of family, friends and mental health professionals, but who, with-
     6  out routine care and  treatment,  may  relapse  and  become  violent  or
     7  suicidal,  or  require  hospitalization.   The legislature further finds
     8  that there are mentally ill persons who can function well and safely  in
     9  the  community  with  supervision  and  treatment,  but who without such
    10  assistance, will relapse and require long periods of hospitalization.
    11    The legislature further finds that some mentally ill persons,  because
    12  of  their illness, have great difficulty taking responsibility for their
    13  own care, and often reject the outpatient treatment offered to them on a
    14  voluntary basis. Family members and caregivers often must stand by help-
    15  lessly and watch their loved ones and patients decompensate.   Effective

    16  mechanisms  for  accomplishing  these ends include: the establishment of
    17  assisted outpatient treatment as a mode of treatment;  improved  coordi-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12103-06-9
        S. 5762--A                          2
 
     1  nation  of  care  for  mentally ill persons living in the community; the
     2  expansion of the use of conditional release  in  psychiatric  hospitals;
     3  and  the  improved dissemination of information between and among mental
     4  health providers and general hospital emergency rooms.
     5    The  legislature further finds that if such court-ordered treatment is
     6  to achieve its goals, it must be linked to  a  system  of  comprehensive

     7  care,  in which state and local authorities work together to ensure that
     8  outpatients  receive  case  management  and  have  access  to  treatment
     9  services.    The  legislature  therefore  finds that assisted outpatient
    10  treatment as provided in this act is compassionate, not  punitive,  will
    11  restore  patients' dignity, and will enable mentally ill persons to lead
    12  more productive and satisfying lives.
    13    The legislature further finds that many mentally ill persons are  more
    14  likely  to  enjoy  recovery  from  non-dangerous,  temporary episodes of
    15  mental illness when they are engaged in planning the nature of the medi-
    16  cations, programs or treatments for such episodes  with  assistance  and
    17  support  from  family, friends and mental health professionals. A health
    18  care proxy executed pursuant to article 29-C of the  public  health  law

    19  provides  mentally ill persons with a means to accept individual respon-
    20  sibility for their  own  continuing  mental  health  care  by  providing
    21  advance  directives  concerning their wishes as to medications, programs
    22  or treatments that they feel are appropriate when they  are  temporarily
    23  unable  to  make mental health care decisions. The legislature therefore
    24  finds that the voluntary use of such proxies should be encouraged so  as
    25  to minimize the need for involuntary mental health treatment.
    26    § 3. Section 7.17 of the mental hygiene law is amended by adding a new
    27  subdivision (f) to read as follows:
    28    (f)  (1)  The  commissioner  shall  appoint  program  coordinators  of
    29  assisted outpatient treatment, who shall be responsible  for  the  over-
    30  sight  and  monitoring  of assisted outpatient treatment programs estab-

    31  lished pursuant to section 9.60 of this chapter. Directors of  community
    32  services of local governmental units shall work in conjunction with such
    33  program coordinators to coordinate the implementation of assisted outpa-
    34  tient treatment programs.
    35    (2)  The  oversight  and monitoring role of the program coordinator of
    36  the assisted outpatient treatment program  shall  include  each  of  the
    37  following:
    38    (i)  that each assisted outpatient receives the treatment provided for
    39  in the court order issued pursuant to section 9.60 of this chapter;
    40    (ii) that existing  services  located  in  the  assisted  outpatient's
    41  community are utilized whenever practicable;
    42    (iii)  that  a  case  manager or assertive community treatment team is

    43  designated for each assisted outpatient;
    44    (iv) that a mechanism exists  for  such  case  manager,  or  assertive
    45  community  treatment team, to regularly report the assisted outpatient's
    46  compliance, or lack of compliance with treatment, to the director of the
    47  assisted outpatient treatment program; and
    48    (v) that assisted outpatient treatment services  are  delivered  in  a
    49  timely manner.
    50    (3)  The  commissioner shall develop standards designed to ensure that
    51  case managers or assertive community treatment  teams  have  appropriate
    52  training  and  have  clinically manageable caseloads designed to provide
    53  effective case  management  or  other  care  coordination  services  for

    54  persons subject to a court order under section 9.60 of this chapter.
    55    (4) Upon review or receiving notice that services are not being deliv-
    56  ered  in  a  timely  manner,  the  program coordinator shall require the
        S. 5762--A                          3
 
     1  director of such assisted outpatient treatment  program  to  immediately
     2  commence  corrective  action  and inform the program coordinator of such
     3  corrective action. Failure of a director to take corrective action shall
     4  be  reported  by  the  program coordinator to the commissioner of mental
     5  health, as well as to the court which ordered  the  assisted  outpatient
     6  treatment.
     7    §  4.  The opening paragraph of section 9.47 of the mental hygiene law

     8  is designated subdivision (a) and a new subdivision (b) is added to read
     9  as follows:
    10    (b) All directors of community services shall be responsible  for  the
    11  filing  of petitions for assisted outpatient treatment pursuant to para-
    12  graph (vi) of subdivision (e) of section 9.60 of this article,  for  the
    13  receipt and investigation of reports of persons who are alleged to be in
    14  need  of  such  treatment  and  for  coordinating  the delivery of court
    15  ordered services with program coordinators, appointed by the commission-
    16  er of mental health, pursuant to subdivision (f) of section 7.17 of this
    17  chapter. In discharge of  the  duties  imposed  by  subdivision  (b)  of
    18  section  9.60  of  this  article,  directors  of  community services may

    19  provide services directly, or may coordinate services with  the  offices
    20  of the department or may contract with any public or private provider to
    21  provide  services for such programs as may be necessary to carry out the
    22  duties imposed pursuant to this subdivision.
    23    § 5. The mental hygiene law is amended by adding a new section 9.48 to
    24  read as follows:
    25  § 9.48 Duties of directors of assisted outpatient treatment programs.
    26    (a)(1) Directors of assisted outpatient treatment programs established
    27  pursuant to section 9.60 of this article shall provide a written  report
    28  to  the  program  coordinators,  appointed by the commissioner of mental
    29  health pursuant to subdivision (f) of  section  7.17  of  this  chapter,

    30  within  three  days  of  the issuance of a court order. The report shall
    31  demonstrate that mechanisms are in  place  to  ensure  the  delivery  of
    32  services  and  medications  as  required  by  the  court order and shall
    33  include, but not be limited to the following:
    34    (i) a copy of the court order;
    35    (ii) a copy of the written treatment plan;
    36    (iii) the identity of the case manager or assertive  community  treat-
    37  ment team, including the name and contact data of the organization which
    38  the  case  manager  or assertive community treatment team member repres-
    39  ents;
    40    (iv) the identity of providers of services; and
    41    (v) the date on which services have commenced or will commence.

    42    (2) The directors of  assisted  outpatient  treatment  programs  shall
    43  ensure  the  timely  delivery  of services described in paragraph one of
    44  subdivision (a) of section 9.60 of this article pursuant  to  any  court
    45  order issued under such section. Directors of assisted outpatient treat-
    46  ment  programs shall immediately commence corrective action upon receiv-
    47  ing notice from  program  coordinators,  that  services  are  not  being
    48  provided  in  a  timely  manner. Such directors shall inform the program
    49  coordinator of such corrective action.
    50    (b) Directors of assisted outpatient treatment programs  shall  submit
    51  quarterly  reports  to  the  program coordinators regarding the assisted

    52  outpatient treatment program operated or administered by such  director.
    53  The report shall include the following information:
    54    (i) the names of individuals served by the program;
    55    (ii)  the  percentage  of  petitions for assisted outpatient treatment
    56  that are granted by the court;
        S. 5762--A                          4
 
     1    (iii) any change in status of assisted outpatients, including but  not
     2  limited  to  the  number  of  individuals who have failed to comply with
     3  court ordered assisted outpatient treatment;
     4    (iv)  a  description of material changes in written treatment plans of
     5  assisted outpatients;
     6    (v) any change in case managers;

     7    (vi) a description of the  categories  of  services  which  have  been
     8  ordered by the court;
     9    (vii) living arrangements of individuals served by the program includ-
    10  ing the number, if any, who are homeless;
    11    (viii) any other information as required by the commissioner of mental
    12  health; and
    13    (ix) any recommendations to improve the program locally or statewide.
    14    § 6. The mental hygiene law is amended by adding a new section 9.60 to
    15  read as follows:
    16  § 9.60 Assisted outpatient treatment.
    17    (a)  Definitions.  For  purposes  of this section, the following defi-
    18  nitions shall apply:
    19    (1) "assisted outpatient treatment" shall mean  categories  of  outpa-

    20  tient  services  which  have  been ordered by the court pursuant to this
    21  section.   Such treatment shall  include  case  management  services  or
    22  assertive  community  treatment  team  services  to provide care coordi-
    23  nation, and  may  also  include  any  of  the  following  categories  of
    24  services:  medication;  periodic  blood tests or urinalysis to determine
    25  compliance with prescribed medications; individual or group therapy; day
    26  or partial day programming activities; educational and vocational train-
    27  ing or activities; alcohol or substance abuse treatment  and  counseling
    28  and  periodic  tests  for  the  presence of alcohol or illegal drugs for
    29  persons with a history of alcohol or  substance  abuse;  supervision  of

    30  living  arrangements;  and  any other services within a local or unified
    31  services plan developed pursuant to article forty-one of  this  chapter,
    32  prescribed to treat the person's mental illness and to assist the person
    33  in  living  and functioning in the community, or to attempt to prevent a
    34  relapse or deterioration that may reasonably be predicted to  result  in
    35  suicide or the need for hospitalization.
    36    (2) "director" shall mean the director of a hospital licensed or oper-
    37  ated  by  the office of mental health which operates, directs and super-
    38  vises an assisted outpatient  treatment  program,  or  the  director  of
    39  community services of a local governmental unit, as such term is defined

    40  in section 41.03 of this chapter, which operates, directs and supervises
    41  an assisted outpatient treatment program.
    42    (3)  "director  of  community services" shall have the same meaning as
    43  provided in article forty-one of this chapter.
    44    (4) "assisted outpatient treatment program" shall  mean  a  system  to
    45  arrange  for  and coordinate the provision of assisted outpatient treat-
    46  ment, to monitor treatment compliance by assisted outpatients, to evalu-
    47  ate the condition or needs of assisted outpatients, to take  appropriate
    48  steps to address the needs of such individuals, and to ensure compliance
    49  with court orders.
    50    (5)  "assisted  outpatient" or "patient" shall mean the person under a

    51  court order to receive assisted outpatient treatment.
    52    (6) "subject of the petition" or "subject" shall mean the  person  who
    53  is  alleged  in  a  petition,  filed  pursuant to the provisions of this
    54  section, to meet the criteria for assisted outpatient treatment.
    55    (7) "correctional facility" or  "local  correctional  facility"  shall
    56  have the same meaning as defined in section two of the correction law.
        S. 5762--A                          5
 
     1    (8)  "health  care  proxy" and "health care agent" shall have the same
     2  meaning as defined in article 29-C of the public health law.
     3    (9)  "program  coordinator"  shall mean an individual appointed by the
     4  commissioner of mental health, pursuant to subdivision  (f)  of  section

     5  7.17  of this chapter, who is responsible for the oversight and monitor-
     6  ing of assisted outpatient treatment programs.
     7    (b) The director of a hospital licensed or operated by the  office  of
     8  mental  health  may operate, direct and supervise an assisted outpatient
     9  treatment program as provided in this  section,  upon  approval  by  the
    10  commissioner  of  mental health. The director of community services of a
    11  local governmental unit shall operate, direct and supervise an  assisted
    12  outpatient  treatment program as provided in this section, upon approval
    13  by the commissioner of mental health. Directors of community services of
    14  local governmental units shall be permitted to satisfy the provisions of

    15  this subdivision through the  operation  of  joint  assisted  outpatient
    16  treatment  programs. Nothing in this subdivision shall be interpreted to
    17  preclude the combination or coordination of efforts  between  and  among
    18  local  governmental  units  and  hospitals in providing and coordinating
    19  assisted outpatient treatment.
    20    (c) Criteria for assisted  outpatient  treatment.  A  patient  may  be
    21  ordered to obtain assisted outpatient treatment if the court finds that:
    22    (1) the patient is eighteen years of age or older; and
    23    (2) the patient is suffering from a mental illness; and
    24    (3) the patient is unlikely to survive safely in the community without
    25  supervision, based on a clinical determination; and

    26    (4) the patient has a history of lack of compliance with treatment for
    27  mental illness that has:
    28    (i)  at  least  twice within the last thirty-six months been a signif-
    29  icant factor in necessitating hospitalization in a hospital, or  receipt
    30  of  services in a forensic or other mental health unit of a correctional
    31  facility or a local   correctional facility, not  including  any  period
    32  during  which  the  person  was hospitalized or incarcerated immediately
    33  preceding the filing of the petition or;
    34    (ii) resulted in one or more acts of serious violent  behavior  toward
    35  self  or  others or threats of, or attempts at, serious physical harm to
    36  self or others within the last forty-eight  months,  not  including  any

    37  period  in which the person was hospitalized or incarcerated immediately
    38  preceding the filing of the petition; and
    39    (5) the patient is, as a result of his or her mental illness, unlikely
    40  to voluntarily participate in the recommended treatment pursuant to  the
    41  treatment plan; and
    42    (6)  in  view of the patient's treatment history and current behavior,
    43  the patient is in need of assisted  outpatient  treatment  in  order  to
    44  prevent  a  relapse  or deterioration which would be likely to result in
    45  serious harm to the patient or others as defined in section 9.01 of this
    46  article; and
    47    (7) it is likely that the patient will benefit  from  assisted  outpa-
    48  tient treatment; and

    49    (8)  if  the  patient  has  executed a health care proxy as defined in
    50  article 29-C of the public health law, that any directions  included  in
    51  such  proxy  shall be taken into account by the court in determining the
    52  written treatment plan.
    53    (d) Nothing herein shall preclude a person with a  health  care  proxy
    54  from being subject to a petition pursuant to this chapter and consistent
    55  with article 29-C of the public health law.
        S. 5762--A                          6
 
     1    (e)  Petition  to  the  court. (1) A petition for an order authorizing
     2  assisted outpatient treatment may be filed  in  the  supreme  or  county
     3  court  in  the county in which the subject of the petition is present or

     4  reasonably believed to be present. A petition to obtain an order author-
     5  izing assisted outpatient treatment may be initiated only by the follow-
     6  ing persons:
     7    (i) any person eighteen years of age or older with whom the subject of
     8  the petition resides; or
     9    (ii)  the  parent,  spouse, sibling eighteen years of age or older, or
    10  child eighteen years of age or older of the subject of the petition; or
    11    (iii) the director of a hospital in which the subject of the  petition
    12  is hospitalized; or
    13    (iv)  the director of any public or charitable organization, agency or
    14  home providing mental health services to the subject of the petition  in
    15  whose institution the subject of the petition resides; or

    16    (v)  a  qualified psychiatrist who is either supervising the treatment
    17  of or treating the subject of the petition for a mental illness; or
    18    (vi) the director of community services, or his or  her  designee,  or
    19  the  social services official, as defined in the social services law, of
    20  the city or county in which the subject of the petition  is  present  or
    21  reasonably believed to be present; or
    22    (vii)  a parole officer or probation officer assigned to supervise the
    23  subject of the petition.
    24     (2) The petition shall state:
    25    (i) each of the criteria for  assisted  outpatient  treatment  as  set
    26  forth in subdivision (c) of this section;
    27    (ii)  facts which support such petitioner's belief that the person who

    28  is the subject of the petition meets each criterion, provided  that  the
    29  hearing on the petition need not be limited to the stated facts; and
    30    (iii)  that  the  subject of the petition is present, or is reasonably
    31  believed to be present, within the county where such petition is filed.
    32    (3) The petition shall be accompanied by an affirmation  or  affidavit
    33  of  a physician, who shall not be the petitioner, and shall state either
    34  that:
    35    (i) such physician has personally  examined  the  person  who  is  the
    36  subject of the petition no more than ten days prior to the submission of
    37  the petition, he or she recommends assisted outpatient treatment for the
    38  subject of the petition, and he or she is willing and able to testify at

    39  the hearing on the petition; or
    40    (ii)  no  more than ten days prior to the filing of the petition, such
    41  physician or his or her designee has made appropriate attempts to elicit
    42  the cooperation of the subject of the petition but has not been success-
    43  ful in persuading the subject to submit to  an  examination,  that  such
    44  physician  has  reason to suspect that the subject of the petition meets
    45  the criteria for assisted outpatient treatment, and that such  physician
    46  is  willing  and able to examine the subject of the petition and testify
    47  at the hearing on the petition.
    48    (f) Service. The petitioner shall cause written notice of the petition
    49  to be given to the subject of the petition and a copy thereof  shall  be

    50  given  personally  or  by  mail to the persons listed in section 9.29 of
    51  this article, the mental hygiene legal service, the current health  care
    52  agent  appointed  by  the  subject of the petition, if any such agent is
    53  known to the petitioner, the appropriate program coordinator, the appro-
    54  priate director of community services, if such director is not the peti-
    55  tioner.
        S. 5762--A                          7
 
     1    (g) Right to counsel. The subject of the petition shall have the right
     2  to be represented by the mental hygiene legal service, or other  counsel
     3  at  the  expense  of  the  subject  of  the petition, at all stages of a
     4  proceeding commenced under this section.

     5    (h)  Hearing.  (1) Upon receipt by the court of the petition submitted
     6  pursuant to subdivision (e) of this section, the  court  shall  fix  the
     7  date  for  a  hearing  at a time not later than three days from the date
     8  such petition is received by the court, excluding Saturdays, Sundays and
     9  holidays. Adjournments shall be permitted only for good cause shown.  In
    10  granting  adjournments,  the  court  shall consider the need for further
    11  examination by a physician or the potential  need  to  provide  assisted
    12  outpatient treatment expeditiously. The court shall cause the subject of
    13  the  petition, any other person receiving notice pursuant to subdivision
    14  (f) of this section, the petitioner, the physician whose affirmation  or

    15  affidavit  accompanied  the petition, the appropriate director, and such
    16  other persons as the court may determine to be  advised  of  such  date.
    17  Upon  such  date, or upon such other date to which the proceeding may be
    18  adjourned, the court shall hear testimony and, if it be deemed advisable
    19  and the subject of  the  petition  is  available,  examine  the  subject
    20  alleged  to  be  in  need  of assisted outpatient treatment in or out of
    21  court. If the subject of the petition does not appear  at  the  hearing,
    22  and  appropriate  attempts  to elicit the attendance of the subject have
    23  failed, the court may conduct the hearing in such subject's absence.  If
    24  the  hearing  is  conducted without the subject of the petition present,

    25  the court shall set forth the factual basis for conducting  the  hearing
    26  without the presence of the subject of the petition.
    27    (2)  The court shall not order assisted outpatient treatment unless an
    28  examining physician, who has personally  examined  the  subject  of  the
    29  petition within the time period commencing ten days before the filing of
    30  the petition, testifies in person at the hearing.
    31    (3)  If  the  subject  of the petition has refused to be examined by a
    32  physician, the court may request the subject to consent to  an  examina-
    33  tion  by a physician appointed by the court. If the subject of the peti-
    34  tion does not consent and the court finds reasonable  cause  to  believe

    35  that the allegations in the petition are true, the court may order peace
    36  officers,  acting  pursuant  to their special duties, or police officers
    37  who are members of an authorized police department or  force,  or  of  a
    38  sheriff's  department  to  take the subject of the petition into custody
    39  and transport him or her to a hospital for examination by  a  physician.
    40  Retention  of  the  subject  of  the petition under such order shall not
    41  exceed twenty-four hours. The examination of the subject of the petition
    42  may be performed by the physician whose affirmation or affidavit  accom-
    43  panied  the  petition  pursuant to paragraph three of subdivision (e) of
    44  this section, if such physician is privileged by such hospital or other-

    45  wise authorized by such hospital  to  do  so.  If  such  examination  is
    46  performed by another physician of such hospital, the examining physician
    47  shall  be  authorized to consult with the physician whose affirmation or
    48  affidavit accompanied the petition regarding the issues of  whether  the
    49  allegations  in  the petition are true and whether the subject meets the
    50  criteria for assisted outpatient treatment.
    51    (4) A physician who testifies pursuant to paragraph two of this subdi-
    52  vision shall state the facts  which  support  the  allegation  that  the
    53  subject  meets  each  of the criteria for assisted outpatient treatment,
    54  and the treatment is the least restrictive alternative, the  recommended

    55  assisted  outpatient  treatment,  and  the rationale for the recommended
    56  assisted outpatient treatment. If the  recommended  assisted  outpatient
        S. 5762--A                          8
 
     1  treatment includes medication, such physician's testimony shall describe
     2  the  types  or  classes  of medication which should be authorized, shall
     3  describe the beneficial and detrimental physical and mental  effects  of
     4  such  medication,  and shall recommend whether such medication should be
     5  self-administered or administered by authorized personnel.
     6    (5) The subject of the petition shall be afforded  an  opportunity  to
     7  present  evidence,  to  call  witnesses on behalf of the subject, and to
     8  cross-examine adverse witnesses.

     9    (i) (1) Written treatment plan. The court  shall  not  order  assisted
    10  outpatient  treatment  unless  an  examining  physician appointed by the
    11  appropriate director develops and provides to the court a proposed writ-
    12  ten treatment plan.  The  written  treatment  plan  shall  include  case
    13  management  services  or  assertive community treatment teams to provide
    14  care coordination. The written treatment plan  also  shall  include  all
    15  categories of services, as set forth in paragraph one of subdivision (a)
    16  of this section, which such physician recommends that the subject of the
    17  petition  should receive. If the written treatment plan includes medica-
    18  tion, it shall state whether such medication should be self-administered

    19  or administered by authorized personnel,  and  shall  specify  type  and
    20  dosage  range  of  medication most likely to provide maximum benefit for
    21  the subject.    If  the  written  treatment  plan  includes  alcohol  or
    22  substance  abuse  counseling  and  treatment,  such  plan  may include a
    23  provision requiring relevant  testing  for  either  alcohol  or  illegal
    24  substances provided the physician's clinical basis for recommending such
    25  plan  provides  sufficient  facts  for  the  court to find (i) that such
    26  person has a history of alcohol or substance abuse  that  is  clinically
    27  related  to  the mental illness; and (ii) that such testing is necessary
    28  to prevent a relapse or deterioration which would be likely to result in

    29  serious harm to the person or others.  In developing such  a  plan,  the
    30  physician  shall  provide  the  following persons with an opportunity to
    31  actively participate in the development of such plan: the subject of the
    32  petition; the treating physician; and upon the request of  the  patient,
    33  an  individual  significant to the patient including any relative, close
    34  friend or  individual  otherwise  concerned  with  the  welfare  of  the
    35  subject. If the petitioner is a director, such plan shall be provided to
    36  the court no later than the date of the hearing on the petition.
    37    (2)  The  court shall not order assisted outpatient treatment unless a
    38  physician testifies to explain the written proposed treatment plan. Such

    39  testimony shall state the categories of  assisted  outpatient  treatment
    40  recommended, the rationale for each such category, facts which establish
    41  that  such  treatment  is the least restrictive alternative, and, if the
    42  recommended assisted outpatient treatment includes medication, the types
    43  or classes of medication recommended,  the  beneficial  and  detrimental
    44  physical and mental effects of such medication, and whether such medica-
    45  tion  should  be  self-administered  or  administered  by  an authorized
    46  professional. If the petitioner is a director such  testimony  shall  be
    47  given at the hearing on the petition.
    48    (j) Disposition. (1) If after hearing all relevant evidence, the court

    49  finds  that  the  subject of the petition does not meet the criteria for
    50  assisted outpatient treatment, the court shall dismiss the petition.
    51    (2) If after hearing all relevant evidence, the court finds  by  clear
    52  and  convincing  evidence  that  the  subject  of the petition meets the
    53  criteria for assisted outpatient treatment, and there is no  appropriate
    54  and feasible less restrictive alternative, the court shall be authorized
    55  to  order  the  subject  to receive assisted outpatient treatment for an
    56  initial period not to exceed six months. In fashioning  the  order,  the
        S. 5762--A                          9
 
     1  court  shall specifically make findings by clear and convincing evidence

     2  that the proposed treatment is the least restrictive treatment appropri-
     3  ate and feasible for the subject. The order shall state  the  categories
     4  of  assisted  outpatient  treatment,  as set forth in subdivision (a) of
     5  this section, which the subject is to receive, and  the  court  may  not
     6  order treatment that has not been recommended by the examining physician
     7  and  included  in  the  written  treatment  plan for assisted outpatient
     8  treatment as required by subdivision (i) of this section.
     9    (3) If after hearing all relevant evidence the court  finds  by  clear
    10  and  convincing  evidence  that  the  subject  of the petition meets the
    11  criteria for assisted outpatient treatment, and the court has yet to  be

    12  provided  with  a written proposed treatment plan and testimony pursuant
    13  to subdivision (i) of this section, the court shall order  the  director
    14  of  community services to provide the court with such plan and testimony
    15  no later than the third day, excluding Saturdays, Sundays and  holidays,
    16  immediately  following  the date of such order. Upon receiving such plan
    17  and testimony, the court may  order  assisted  outpatient  treatment  as
    18  provided in paragraph two of this subdivision.
    19    (4)  A  court  may  order  the patient to self-administer psychotropic
    20  drugs or accept the administration of such drugs by authorized personnel
    21  as part of an assisted outpatient  treatment  program.  Such  order  may

    22  specify  the  type  and dosage range of such psychotropic drugs and such
    23  order shall be effective for the duration of  such  assisted  outpatient
    24  treatment.
    25    (5)  If  the petitioner is the director of a hospital that operates an
    26  assisted outpatient treatment program, the court order shall direct  the
    27  hospital  director  to provide or arrange for all categories of assisted
    28  outpatient treatment for the assisted outpatient throughout  the  period
    29  of  the order. For all other persons, the order shall require the direc-
    30  tor of community services of the appropriate local governmental unit  to
    31  provide  or  arrange for all categories of assisted outpatient treatment
    32  for the assisted outpatient throughout the period of the order.

    33    (6) The director or his or her designee shall apply to the  court  for
    34  approval  before  instituting a proposed material change in the assisted
    35  outpatient treatment order unless such change  is  contemplated  in  the
    36  order. Non-material changes may be instituted by the assisted outpatient
    37  treatment  program  without  court  approval.  For  the purposes of this
    38  subdivision, a material change shall mean an addition or deletion  of  a
    39  category  of  assisted outpatient treatment from the order of the court,
    40  or any deviation without the patient's consent  from  the  terms  of  an
    41  existing  order  relating  to  the administration of psychotropic drugs.
    42  Any such application for approval shall be  served  upon  those  persons

    43  required to be served with notice of a petition for an order authorizing
    44  assisted outpatient treatment.
    45    (k)  Applications for additional periods of treatment. If the director
    46  determines that the condition of such patient requires further  assisted
    47  outpatient  treatment,  the director shall apply prior to the expiration
    48  of the period of assisted outpatient treatment ordered by the court  for
    49  a  second  or subsequent order authorizing continued assisted outpatient
    50  treatment for a period not to exceed one  year  from  the  date  of  the
    51  order.  The procedures for obtaining any order pursuant to this subdivi-
    52  sion shall be in accordance with the provisions of the foregoing  subdi-

    53  visions  of  this  section,  provided  that  the time period included in
    54  subparagraphs (i) and (ii) of paragraph four of subdivision (c) of  this
    55  section  shall  not  be applicable in determining the appropriateness of
    56  additional periods of assisted outpatient  treatment.  Any  court  order
        S. 5762--A                         10
 
     1  requiring periodic blood tests or urinalysis for the presence of alcohol
     2  or  illegal  drugs  shall  be  subject to review after six months by the
     3  physician who developed the written treatment plan or another  physician
     4  designated  by  the  director, and such physician shall be authorized to
     5  terminate such blood tests or urinalysis without further action  by  the
     6  court.

     7    (l) Application for an order to stay, vacate or modify. In addition to
     8  any other right or remedy available by law with respect to the order for
     9  assisted   outpatient  treatment,  the  patient,  mental  hygiene  legal
    10  service, or anyone acting on the patient's behalf may apply on notice to
    11  the appropriate director and the original petitioner, to  the  court  to
    12  stay, vacate or modify the order.
    13    (m)  Appeals. Review of an order issued pursuant to this section shall
    14  be had in like manner as specified in section 9.35 of this article.
    15    (n) Failure to comply with assisted outpatient treatment. Where in the
    16  clinical judgment of a physician, the patient has failed or has  refused

    17  to  comply  with  the  treatment ordered by the court, and in the physi-
    18  cian's clinical judgment, efforts were made to solicit compliance,  and,
    19  in  the clinical judgment of such physician, such patient may be in need
    20  of involuntary admission to a hospital pursuant to section 9.27 of  this
    21  article,  or  for  whom immediate observation, care and treatment may be
    22  necessary pursuant to section 9.39 or 9.40 of this article, such  physi-
    23  cian  may  request  the  director,  the  director's designee, or persons
    24  designated pursuant to section 9.37  of  this  article,  to  direct  the
    25  removal of such patient to an appropriate hospital for an examination to
    26  determine  if such person has a mental illness for which hospitalization

    27  is necessary pursuant to section 9.27, 9.39 or  9.40  of  this  article.
    28  Furthermore,  if such assisted outpatient refuses to take medications as
    29  required by the court order, or he or she refuses to take,  or  fails  a
    30  blood test, urinalysis, or alcohol or drug test as required by the court
    31  order,  such  physician may consider such refusal or failure when deter-
    32  mining whether the assisted outpatient is in need of an  examination  to
    33  determine  whether he or she has a mental illness for which hospitaliza-
    34  tion is necessary. Upon the request of such physician, the director, the
    35  director's designee, or persons designated pursuant to section  9.37  of
    36  this  article,  may direct peace officers, when acting pursuant to their

    37  special duties, or police officers who  are  members  of  an  authorized
    38  police  department  or  force  or of a sheriff's department to take into
    39  custody and transport any such person  to  the  hospital  operating  the
    40  assisted  outpatient  treatment program or to any hospital authorized by
    41  the director of community services to receive  such  persons.  Such  law
    42  enforcement  officials  shall carry out such directive. Upon the request
    43  of such physician, the director,  the  director's  designee,  or  person
    44  designated  pursuant  to  section  9.37  of  this  article, an ambulance
    45  service, as defined by subdivision two of section three thousand one  of
    46  the  public  health  law,  or an approved mobile crisis outreach team as

    47  defined in section 9.58 of this article shall be authorized to take into
    48  custody and transport any such person  to  the  hospital  operating  the
    49  assisted  outpatient treatment program, or to any other hospital author-
    50  ized by the director of community services to receive such persons. Such
    51  person may be retained for observation, care and treatment  and  further
    52  examination  in  the  hospital  for  up to seventy-two hours to permit a
    53  physician to determine whether such person has a mental illness  and  is
    54  in  need of involuntary care and treatment in a hospital pursuant to the
    55  provisions  of this article. Any continued involuntary retention in such
    56  hospital beyond the initial seventy-two hour period shall be in  accord-

        S. 5762--A                         11
 
     1  ance  with  the  provisions  of this article relating to the involuntary
     2  admission and retention of a person. If at any time during the  seventy-
     3  two  hour  period  the  person is determined not to meet the involuntary
     4  admission  and  retention provisions of this article, and does not agree
     5  to stay in the hospital as a voluntary or informal patient,  he  or  she
     6  must be released. Failure to comply with an order of assisted outpatient
     7  treatment  shall  not  be  grounds for involuntary civil commitment or a
     8  finding of contempt of court.
     9    (o) Effect of determination that a  person  is  in  need  of  assisted
    10  outpatient  treatment. The determination by a court that a patient is in

    11  need of assisted outpatient treatment under this section  shall  not  be
    12  construed  as or deemed to be a determination that such patient is inca-
    13  pacitated pursuant to article  eighty-one of this chapter.
    14    (p) False petition. A person making a  false  statement  or  providing
    15  false information or false testimony in a petition or hearing under this
    16  section  is  subject  to  criminal  prosecution  pursuant to article one
    17  hundred seventy-five or article two hundred ten of the penal law.
    18    (q) Exception. Nothing in this section shall be  construed  to  affect
    19  the  ability  of the director of a hospital to receive, admit, or retain
    20  patients who otherwise meet the provisions  of  this  article  regarding
    21  receipt, retention or admission.

    22    (r)  Educational  materials. The office of mental health, in consulta-
    23  tion with the office of court administration, shall prepare  educational
    24  and  training  materials on the use of this section, which shall be made
    25  available to local governmental units as defined in article forty-one of
    26  this chapter,  providers  of  services,  judges,  court  personnel,  law
    27  enforcement officials and the general public.
    28    §  7.  Subdivision  (h)  of section 9.61 of the mental hygiene law, as
    29  amended by chapter 338 of the laws  of  1999,  is  amended  to  read  as
    30  follows:
    31    (h)  Applications for additional periods of treatment. If the director
    32  of such hospital determines that the condition of such patient  requires
    33  further involuntary outpatient treatment, the director shall apply prior

    34  to  the  earlier  of  April first, two thousand or the expiration of the
    35  period of involuntary outpatient treatment ordered by the court  for  an
    36  order authorizing continued involuntary outpatient treatment for a peri-
    37  od not to exceed one hundred eighty days from the date of the order. The
    38  procedures for obtaining any order pursuant to this subdivision shall be
    39  in  accordance with the provisions of the foregoing subdivisions of this
    40  section. The period for further involuntary outpatient treatment author-
    41  ized by any subsequent order under this subdivision shall not exceed one
    42  hundred eighty days from the date  of  the  order.  [Provided,  further]
    43  Notwithstanding any other provision of law, any order authorizing invol-
    44  untary  outpatient  treatment,  issued  pursuant  to  this section shall

    45  expire on [August tenth, nineteen hundred ninety-nine, unless  otherwise
    46  provided by law] or before September thirtieth, two thousand.
    47    §  8. Section 6 of chapter 560 of the laws of 1994, amending the judi-
    48  ciary law and the mental hygiene law relating to  establishing  a  pilot
    49  program  of  involuntary outpatient treatment, as amended by chapter 338
    50  of the laws of 1999, is amended to read as follows:
    51    § 6. This act shall take effect immediately and shall  expire  [August
    52  10,  1999] September 30, 2000 when upon such date the provisions of this
    53  act shall be deemed repealed.
    54    § 9. Section 9.61 of the mental hygiene law, as added by  chapter  678
    55  of the laws of 1994, is renumbered section 9.63.
        S. 5762--A                         12
 

     1    §  10.  Paragraph  1 of subdivision (e) of section 29.15 of the mental
     2  hygiene law, as amended by chapter 789 of the laws of 1985,  is  amended
     3  to read as follows:
     4    1.  In  the case of an involuntary patient on conditional release, the
     5  director may terminate the conditional release and order the patient  to
     6  return to the facility at any time during the period for which retention
     7  was authorized, if, in the director's judgment, the patient needs in-pa-
     8  tient care and treatment and the conditional release is no longer appro-
     9  priate;  provided,  however,  that  in any such case, the director shall
    10  cause written notice of such patient's return to be given to the  mental
    11  hygiene legal service. [If, at any time prior to the expiration of thir-
    12  ty  days  from the date of return to the facility, he or any relative or

    13  friend or the mental hygiene legal service gives notice  in  writing  to
    14  the  director  of request for hearing on the question of the suitability
    15  of such patient's return to the facility, a hearing shall be held pursu-
    16  ant to the provisions of this chapter relating to the involuntary admis-
    17  sion of a person] The director shall cause the patient  to  be  retained
    18  for  observation, care and treatment and further examination in a hospi-
    19  tal for up to seventy-two hours if a  physician  on  the  staff  of  the
    20  hospital  determines  that such person may have a mental illness and may
    21  be in need of involuntary care and treatment in a hospital  pursuant  to
    22  the  provisions of article nine of this chapter. Any continued retention

    23  in such hospital beyond the initial seventy-two hour period shall be  in
    24  accordance  with the provisions of this chapter relating to the involun-
    25  tary admission and retention of a person. If  at  any  time  during  the
    26  seventy-two  hour period the person is determined not to meet the invol-
    27  untary admission and retention provisions of this chapter, and does  not
    28  agree  to stay in the hospital as a voluntary or informal patient, he or
    29  she must be released, either conditionally or unconditionally.
    30    § 11. Section 29.19 of the mental hygiene law, as amended  by  chapter
    31  843 of the laws of 1980, is amended to read as follows:
    32  § 29.19 Powers  and  duties  of  peace officers acting pursuant to their
    33            special duties and police officers to apprehend, restrain, and

    34            transport persons to facilities.
    35    A person who has been committed or admitted to a  department  facility
    36  or  a  hospital  licensed or operated by the office of mental health and
    37  who has been reported as escaped therefrom or from  lawful  custody,  or
    38  who  resists  or  evades  lawful  custody;  and any patient for whom the
    39  director of a hospital operated by the office of mental health,  or  the
    40  director's  designee,  has  terminated a conditional release and ordered
    41  such patient to return to such facility; and  any  patient  for  whom  a
    42  director  of  an  assisted  outpatient  treatment program, as defined in
    43  subdivision (a) of section 9.60  of  this  chapter,  or  the  director's
    44  designee, or anyone designated pursuant to section 9.37 of this chapter,

    45  has  directed  the  removal to a hospital pursuant to subdivision (n) of
    46  section 9.60 of this chapter, may  be  apprehended,  restrained,  trans-
    47  ported to, and returned to such school or hospital by any peace officer,
    48  acting  pursuant  to  his special duties, or any police officer who is a
    49  member of an authorized police department or force  or  of  a  sheriff's
    50  department,  and  it shall be the duty of any such officer to assist any
    51  representative of a department or  licensed  facility,  or  an  assisted
    52  outpatient  treatment  program,  to take into custody any such person or
    53  patient upon the request of such representative, director or designee.
    54    § 12. Subdivisions (b) and (d) of section 33.13 of the mental  hygiene

    55  law,  as amended by chapter 912 of the laws of 1984, are amended to read
    56  as follows:
        S. 5762--A                         13
 
     1    (b) The commissioners may require that statistical  information  about
     2  patients  or  clients  be  reported  to  the offices. [Names of patients
     3  treated at  out-patient  or  non-residential  facilities,  at  hospitals
     4  licensed  by  the office of mental health and at general hospitals shall
     5  not be required as part of any such reports.]
     6    (d)  Nothing  in  this  section  shall prevent the electronic or other
     7  exchange of information concerning patients or clients, including  iden-
     8  tification,  between  and  among  (i)  facilities  or  others  providing
     9  services for such patients or clients pursuant to an approved  local  or

    10  unified  services plan, as defined in article forty-one of this chapter,
    11  or pursuant to agreement with the department, and (ii) the department or
    12  any of its licensed or operated facilities.  [Information]  Furthermore,
    13  subject  to  the  prior  approval  of the commissioner of mental health,
    14  hospital emergency services licensed pursuant to article twenty-eight of
    15  the public health  law  shall  be  authorized  to  exchange  information
    16  concerning  patients  or  clients electronically or otherwise with other
    17  hospital emergency services licensed pursuant to article twenty-eight of
    18  the public health law and/or  hospitals  licensed  or  operated  by  the
    19  office  of  mental health; provided that such exchange of information is

    20  consistent with standards,  developed  by  the  commissioner  of  mental
    21  health,  which  are  designed to ensure confidentiality of such informa-
    22  tion. Additionally, information so exchanged shall be kept  confidential
    23  and  any  limitations  on the release of such information imposed on the
    24  party giving the information shall apply  to  the  party  receiving  the
    25  information.
    26    §  13.  Subdivision  (a) of section 41.13 of the mental hygiene law is
    27  amended by adding two new paragraphs 15 and 16 to read as follows:
    28    15. administer, supervise or operate any assisted outpatient treatment
    29  program of a local governmental unit pursuant to section  9.60  of  this
    30  chapter and provide that all necessary services are planned for and made
    31  available for individuals committed under the program.

    32    16. identify and plan for the provision of care coordination, emergen-
    33  cy services, and other needed services for persons who are identified as
    34  high-need  patients,  as  such  term  is  defined by the commissioner of
    35  mental health.
    36    § 14. Subdivision (c) of section 47.03 of the mental hygiene  law,  as
    37  added by chapter 789 of the laws of 1985, is amended to read as follows:
    38    (c)  To provide legal services and assistance to patients or residents
    39  and their families related to the admission,  retention,  and  care  and
    40  treatment  of such persons,  to provide legal services and assistance to
    41  subjects of a petition or patients subject to section 9.60 of this chap-
    42  ter, and to inform patients or residents, their families and, in  proper

    43  cases,  others  interested in the patients' or residents' welfare of the
    44  availability of other legal resources which  may  be  of  assistance  in
    45  matters  not  directly related to the admission, retention, and care and
    46  treatment of such patients or residents;
    47    § 15. (a) Within amounts appropriated therefor,  the  commissioner  of
    48  mental  health  shall  provide grants to each county and the city of New
    49  York, which  shall be used by each such county or city, to provide medi-
    50  cation, and other services necessary to prescribe and administer medica-
    51  tion to treat mental illness during the pendency of a medical assistance
    52  eligibility  determination.  Such  eligibility  determination  shall  be
    53  completed  in  a timely and expeditious manner as required by applicable
    54  regulations of the commissioner of health. Counties or  the  city  shall

    55  use  such  grants  to  provide  medications  prescribed  to treat mental
    56  illness for individuals for whom the process  of  applying  for  medical
        S. 5762--A                         14
 
     1  assistance  benefits  has  been commenced prior to or within one week of
     2  discharge or release and who: (1) are discharged  from  a  hospital,  as
     3  defined  in section 1.03 of the mental hygiene law, or (2) have received
     4  services  in  or  from  a  forensic  or  similar mental health unit of a
     5  correctional facility or  local  correctional  facility  as  defined  in
     6  section two of the correction law.
     7    (b) Such grants to provide medications shall be subject to the commis-
     8  sioner's  approval  and  supervision  of an efficient and effective plan
     9  submitted by a county or the city of New York. Such plans shall include,

    10  but not be limited to, the following: (i) the process by which the coun-
    11  ty or the city of New York  will  improve  the  timely  and  expeditious
    12  filing  of  medical assistance applications and coordinate the filing of
    13  applications  for  other  public  benefits  for  which  the   population
    14  described  in  subdivision (a) of this section may be eligible; (ii) the
    15  process by which medications prescribed to treat mental illness for such
    16  individuals will be  available  at  or  near  the  time  of  release  or
    17  discharge;  (iii)  a  specific  description of the process by which such
    18  individuals will be referred to a county or city provider, or a provider
    19  which contracts with the county or city, to  provide  medication  at  or
    20  near  the  time of release or discharge; and (iv) the process to provide
    21  information necessary for the New York state office of mental health  to

    22  file appropriate medical assistance claims.
    23    (c) Further, upon application of a county or the city of New York, and
    24  within  the  amounts  appropriated  therefor, the commissioner of mental
    25  health shall be authorized to provide grants to such county or  city  to
    26  be  used  to  assist the local governmental units, as defined in section
    27  41.03 of the mental hygiene law, in the development of plans pursuant to
    28  subdivision (b) of this section, or to be  used  at  local  correctional
    29  facilities  to  improve the coordination between the individuals defined
    30  in subdivision (a) of this section and the appropriate county  represen-
    31  tative  or other individual who will provide the psychiatric medications
    32  available under this program as determined  in  the  plans  approved  in
    33  subdivision  (b)  of  this  section,  and  to assist such individuals in

    34  applying for medical assistance and other public benefits.  The  commis-
    35  sioner  of  mental  health  is hereby authorized to promulgate and adopt
    36  rules and regulations necessary to implement this section.
    37    § 16. Report and evaluation. The commissioner of mental  health  shall
    38  issue  an interim report on or before January 1, 2003 and a final report
    39  on or before March 1, 2005. Such  reports  shall  be  submitted  to  the
    40  governor  and  the chairpersons of the senate and assembly mental health
    41  committees, and shall include information concerning the characteristics
    42  and demographics of assisted outpatients; the incidence of homelessness,
    43  hospitalization and incarceration of patients before assisted outpatient
    44  treatment to the extent available, and  information  on  such  incidence
    45  during  assisted outpatient treatment; outcomes of judicial proceedings,

    46  including the percentage of petitions for assisted outpatient  treatment
    47  that  are  granted  by  the court; referral outcomes, including the time
    48  frames for service delivery; reasons for closed  cases;  utilization  of
    49  existing and new services; and recommendations for changes in statute.
    50    § 17. Separability clause. If any clause, sentence, paragraph, section
    51  or  part  of this act shall be adjudged by any court of competent juris-
    52  diction to be invalid, such judgment shall not affect, impair or invali-
    53  date the remainder thereof, but shall be confined in  its  operation  to
    54  the  clause,  sentence,  paragraph,  section  or  part  thereof directly
    55  involved in the controversy in  which  such  judgment  shall  have  been
    56  rendered.
        S. 5762--A                         15
 

     1    §  18.  This  act shall take effect immediately, provided that section
     2  fifteen of this act shall take effect April 1, 2000, provided,  further,
     3  that  subdivision (e) of section 9.60 of the mental hygiene law as added
     4  by section six of this act shall be effective 90  days  after  this  act
     5  shall  become law; and that this act shall expire and be deemed repealed
     6  June 30, 2005; and, provided, further, that the  amendments  to  section
     7  9.61  of  the mental hygiene law made by section seven of this act shall
     8  not affect the expiration of such section and shall be deemed to  expire
     9  therewith.