Bill Text: NY S07596 | 2009-2010 | General Assembly | Introduced
Bill Title: Enhances assisted outpatient treatment program and repeals expiration of Kendra's law.
Spectrum: Moderate Partisan Bill (Republican 15-3)
Status: (Introduced - Dead) 2010-04-23 - REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES [S07596 Detail]
Download: New_York-2009-S07596-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7596
I N S E N A T E
April 23, 2010
___________
Introduced by Sen. YOUNG -- read twice and ordered printed, and when
printed to be committed to the Committee on Mental Health and Develop-
mental Disabilities
AN ACT to amend the mental hygiene law and the correction law, in
relation to enhancing the assisted outpatient treatment program; and
to amend chapter 408 of the laws of 1999 constituting Kendra's Law, in
relation to the effective date thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Legislative findings. In 1999, the legislature enacted
2 "Kendra's Law," establishing a statewide court-ordered assisted outpa-
3 tient treatment (AOT) program to improve outcomes for persons with
4 severe mental illness who, in view of their treatment history and pres-
5 ent circumstances, are likely to have difficulty living safely in the
6 community. At the approach of the law's original 2005 expiration date,
7 the legislature took note of Office of Mental Health (OMG) data indicat-
8 ing that Kendra's Law had impressively served its targeted population,
9 including documented declines in rates of homelessness, hospitalization,
10 violence, arrest and incarceration, and documented increases in treat-
11 ment compliance. However, at the time questions and concerns about the
12 program remained unanswered. Rather than make the law permanent in 2005,
13 the legislature opted to extend Kendra's Law for an additional five
14 years with a mandate that OMH contract with an external research organ-
15 ization to evaluate the program.
16 On June 30, 2009, a team of independent researchers released the
17 report of their long-term study of AOT throughout New York state. The
18 legislature finds that this report confirms the earlier OMH data on
19 vastly improved outcomes, including less frequent psychiatric hospitali-
20 zations, shorter length of hospitalizations, and reduction in the like-
21 lihood of arrest. We find it further establishes, inter alia, that AOT
22 recipients are far more likely than other patients to consistently
23 receive psychotropic medications appropriate to their psychiatric condi-
24 tion; that AOT does not cause recipients to perceive stigma or coercion;
25 that those who receive AOT for periods of at least one year are more
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16538-01-0
S. 7596 2
1 likely than those who receive AOT for shorter periods to sustain gains
2 after leaving the program; that the law has been applied in a non-dis-
3 criminatory manner; and that the court order itself, in addition to high
4 quality services, is a significant factor in the program's success.
5 Based on these empirical findings, the legislature finds that the
6 concerns which led it to extend the expiration of Kendra's Law in 2005
7 have been addressed. Kendra'a Law should be made a permanent fixture of
8 New York's mental health care system.
9 Finally, the legislature finds that the June 30, 2009 study findings,
10 as well as the experience of thousands of patients, treatment providers
11 and families who have utilized Kendra's Law since 1999, point to several
12 areas where the law should be improved to promote smoother functioning
13 of the AOT program and easier access to those who stand to benefit from
14 it. The amendments included in this act are intended to reflect these
15 findings and maximize the unique potential of this legislation to simul-
16 taneously serve the goals of compassionate care, fiscal responsibility,
17 and public safety.
18 S 2. Subdivision (f) of section 7.17 of the mental hygiene law, as
19 added by chapter 408 of the laws of 1999, paragraph 2 as amended by
20 chapter 158 of the laws of 2005, is amended to read as follows:
21 (f) (1) The commissioner shall appoint program coordinators of
22 assisted outpatient treatment, who shall be responsible for the over-
23 sight and monitoring of assisted outpatient treatment programs estab-
24 lished pursuant to section 9.60 of this [chapter] TITLE. Directors of
25 community services of local governmental units shall work in conjunction
26 with such program coordinators to coordinate the implementation of
27 assisted outpatient treatment programs.
28 (2) The oversight and monitoring role of the program coordinator [of
29 the assisted outpatient treatment program] shall include [each of the
30 following] ENSURING THAT:
31 (i) [that] each assisted outpatient receives the treatment provided
32 for in the court order issued pursuant to section 9.60 of this [chapter]
33 TITLE;
34 (ii) [that] existing services located in the assisted outpatient's
35 community are utilized whenever practicable;
36 (iii) [that] a case manager or assertive community treatment team is
37 designated for each assisted outpatient;
38 (iv) [that] a mechanism exists for such case manager, or assertive
39 community treatment team, to regularly report the assisted outpatient's
40 compliance, or lack of compliance with treatment, to the director of the
41 assisted outpatient treatment program;
42 (v) [that] directors of community services establish procedures which
43 provide that reports of persons who may be in need of assisted outpa-
44 tient treatment are appropriately investigated in a timely manner; [and]
45 (vi) [that] assisted outpatient treatment services are delivered in a
46 timely manner[.];
47 (VII) PRIOR TO THE EXPIRATION OF ASSISTED OUTPATIENT TREATMENT ORDERS,
48 THE CLINICAL NEEDS OF ASSISTED OUTPATIENTS ARE ADEQUATELY REVIEWED IN
49 DETERMINING THE NEED TO PETITION FOR CONTINUED ASSISTED OUTPATIENT
50 TREATMENT PURSUANT TO SUBDIVISION (K) OF SECTION 9.60 OF THIS TITLE; AND
51 (VIII) THE OFFICE FULFILLS ITS DUTIES PURSUANT TO SUBDIVISION (R) OF
52 SECTION 9.60 OF THIS TITLE TO MEET LOCAL NEEDS FOR TRAINING OF JUDGES
53 AND COURT PERSONNEL.
54 (3) The commissioner shall develop standards designed to ensure that
55 case managers or assertive community treatment teams have appropriate
56 training and have clinically manageable caseloads designed to provide
S. 7596 3
1 effective case management or other care coordination services for
2 persons subject to [a court order under] ASSISTED OUTPATIENT TREATMENT
3 PURSUANT TO section 9.60 of this [chapter] TITLE.
4 (4) Upon review or receiving notice that ASSISTED OUTPATIENT TREATMENT
5 services are not being delivered in a timely manner, the program coordi-
6 nator shall require the director of [such] THE assisted outpatient
7 treatment program to immediately commence corrective action and inform
8 the program coordinator of such corrective action. Failure of a director
9 to take corrective action shall be reported by the program coordinator
10 to the commissioner [of mental health], as well as to the court which
11 ordered the assisted outpatient treatment.
12 S 3. Subdivision (b) of section 9.47 of the mental hygiene law, as
13 amended by chapter 158 of the laws of 2005, is amended to read as
14 follows:
15 (b) All directors of community services shall be responsible for:
16 (1) receiving reports of persons who may be in need of assisted outpa-
17 tient treatment PURSUANT TO SECTION 9.60 OF THIS ARTICLE, INCLUDING BUT
18 NOT LIMITED TO REPORTS RECEIVED FROM FAMILY AND COMMUNITY MEMBERS AND
19 WRITTEN REPORTS RECEIVED FROM HOSPITAL DIRECTORS PURSUANT TO SUBDIVISION
20 (O) OF SECTION 29.15 OF THIS CHAPTER AND SUBDIVISION TWO OF SECTION FOUR
21 HUNDRED FOUR OF THE CORRECTION LAW, and documenting the receipt date of
22 such reports;
23 (2) conducting timely investigations of [such] reports RECEIVED PURSU-
24 ANT TO PARAGRAPH ONE OF THIS SUBDIVISION and providing written notice
25 upon the completion of investigations to reporting persons and program
26 coordinators, appointed by the commissioner [of mental health] pursuant
27 to subdivision (f) of section 7.17 of this title, and documenting the
28 initiation and completion dates of such investigations and the disposi-
29 tions;
30 (3) filing [of] petitions for assisted outpatient treatment pursuant
31 to paragraph (vii) of subdivision (e) of section 9.60 of this article,
32 and documenting the petition filing [date] DATES and the [date] DATES of
33 [the] court [order] ORDERS;
34 (4) coordinating the timely delivery of court ordered services with
35 program coordinators and documenting the [date] DATES assisted outpa-
36 tients begin to receive [the] COURT ORDERED services [mandated in the
37 court order]; and
38 (5) reporting on a quarterly basis to program coordinators the infor-
39 mation collected pursuant to this subdivision.
40 S 4. Section 9.48 of the mental hygiene law, as added by chapter 408
41 of the laws of 1999, is amended to read as follows:
42 S 9.48 Duties of directors of assisted outpatient treatment programs.
43 (a)(1) [Directors] THE DIRECTOR of AN assisted outpatient treatment
44 [programs] PROGRAM established pursuant to section 9.60 of this article
45 shall provide a written report to the APPROPRIATE program [coordinators]
46 COORDINATOR, appointed by the commissioner [of mental health] pursuant
47 to subdivision (f) of section 7.17 of this [chapter] TITLE, within three
48 days of the issuance of a court order FOR ASSISTED OUTPATIENT TREATMENT.
49 The report shall demonstrate that mechanisms are in place to ensure the
50 delivery of services and medications as required by the court order and
51 shall include, but not be limited to [the following]:
52 (i) a copy of the court order;
53 (ii) a copy of the written treatment plan;
54 (iii) the identity of the case manager or assertive community treat-
55 ment team, including the name and contact data of the organization which
S. 7596 4
1 the case manager or assertive community treatment team member repres-
2 ents;
3 (iv) the [identity] IDENTITIES of providers of services; and
4 (v) the date on which services have commenced or will commence.
5 (2) The [directors] DIRECTOR of AN assisted outpatient treatment
6 [programs] PROGRAM shall ensure the timely delivery of services
7 [described in paragraph one of subdivision (a) of section 9.60 of this
8 article] pursuant to any court order [issued under such section. Direc-
9 tors of assisted outpatient treatment programs shall immediately
10 commence corrective action upon] FOR ASSISTED OUTPATIENT TREATMENT. UPON
11 receiving notice from THE program [coordinators,] COORDINATOR that SUCH
12 services are not being provided in a timely manner[. Such directors
13 shall inform], SUCH DIRECTOR SHALL IMMEDIATELY COMMENCE CORRECTIVE
14 ACTION AND REPORT SUCH ACTION TO the program coordinator [of such
15 corrective action].
16 (b) [Directors] THE DIRECTOR of AN assisted outpatient treatment
17 [programs] PROGRAM shall submit quarterly reports to the APPROPRIATE
18 program [coordinators] COORDINATOR regarding the assisted outpatient
19 treatment program [operated or administered by such director. The
20 report]. SUCH REPORTS shall include [the following information]:
21 (i) the names of individuals served by the program;
22 (ii) the percentage of petitions for assisted outpatient treatment
23 that [are] HAVE BEEN granted by the court;
24 (iii) any change in status of assisted outpatients, including but not
25 limited to the number of individuals who have failed to comply with
26 court ordered assisted outpatient treatment;
27 (iv) a description of material changes in written treatment plans of
28 assisted outpatients;
29 (v) any change in case managers;
30 (vi) a description of the categories of services which have been
31 ordered by the court;
32 (vii) living arrangements of individuals served by the program includ-
33 ing the number, if any, who are homeless;
34 (viii) AN ACCOUNT OF ANY COURT ORDER EXPIRATION, INCLUDING BUT NOT
35 LIMITED TO THE DIRECTOR'S DETERMINATION AS TO WHETHER TO PETITION FOR
36 CONTINUED ASSISTED OUTPATIENT TREATMENT, THE BASIS FOR SUCH DETERMI-
37 NATION, AND THE DISPOSITION OF ANY SUCH PETITION;
38 (IX) any other information as required by the commissioner [of mental
39 health]; and
40 [(ix)] (X) any recommendations to improve the program locally or
41 statewide.
42 S 5. Section 9.60 of the mental hygiene law, as amended by chapter 158
43 of the laws of 2005, paragraph 5 of subdivision (c) as amended by chap-
44 ter 137 of the laws of 2005, is amended to read as follows:
45 S 9.60 Assisted outpatient treatment.
46 (a) Definitions. For purposes of this section[, the following defi-
47 nitions shall apply]:
48 (1) "assisted outpatient treatment" shall mean categories of outpa-
49 tient services which have been ordered by the court pursuant to this
50 section. Such treatment shall include case management services or
51 assertive community treatment team services to provide care coordi-
52 nation, and may also include [any of the following categories of
53 services]: medication; MEDICATION OR SYMPTOM MANAGEMENT TRAINING OR
54 EDUCATION; periodic blood tests or urinalysis to determine compliance
55 with prescribed medications; individual or group therapy; day or partial
56 day programming activities; educational and vocational training or
S. 7596 5
1 activities; APPOINTMENT OF A REPRESENTATIVE PAYEE OR OTHER FINANCIAL
2 MANAGEMENT SERVICES; alcohol or substance abuse treatment and counseling
3 and periodic OR RANDOM tests for the presence of alcohol or illegal
4 drugs for persons with a history of alcohol or substance abuse; super-
5 vision of living arrangements; and any other services within a local or
6 unified services plan developed pursuant to article forty-one of this
7 chapter, CLINICAL OR NON-CLINICAL, prescribed to treat the person's
8 mental illness and to assist the person in living and functioning in the
9 community, or to attempt to prevent a relapse or deterioration that may
10 reasonably be predicted to result in suicide or the need for hospitali-
11 zation.
12 (2) "director" shall mean the director of community services of a
13 local governmental unit, or the director of a hospital licensed or oper-
14 ated by the office of mental health which operates, directs and super-
15 vises an assisted outpatient treatment program.
16 (3) "director of community services" and "local governmental unit"
17 shall have the same meanings as provided in article forty-one of this
18 chapter.
19 (4) "assisted outpatient treatment program" shall mean a system to
20 arrange for and coordinate the provision of assisted outpatient treat-
21 ment, to monitor AND ENSURE treatment compliance by assisted outpa-
22 tients, AND to evaluate AND ADDRESS the condition [or] AND needs of
23 assisted outpatients[, to take appropriate steps to address the needs of
24 such individuals, and to ensure compliance with court orders].
25 (5) "assisted outpatient" shall mean the person under a court order to
26 receive assisted outpatient treatment.
27 (6) "subject of the petition" or "subject" shall mean the person who
28 is alleged in a petition, filed pursuant to the provisions of this
29 section, to meet the criteria for assisted outpatient treatment.
30 (7) "correctional facility" and "local correctional facility" shall
31 have the same meanings as provided in section two of the correction law.
32 (8) "health care proxy" and "health care agent" shall have the same
33 meanings as provided in article twenty-nine-C of the public health law.
34 (9) "program coordinator" shall mean an individual appointed by the
35 commissioner [of mental health], pursuant to subdivision (f) of section
36 7.17 of this [chapter] TITLE, who is responsible for the oversight and
37 monitoring of assisted outpatient treatment programs.
38 (b) Programs. The director of community services of each local govern-
39 mental unit shall operate, direct and supervise an assisted outpatient
40 treatment program. The director of a hospital licensed or operated by
41 the office of mental health may operate, direct and supervise an
42 assisted outpatient treatment program, upon approval by the commission-
43 er. Directors of community services shall be permitted to satisfy the
44 provisions of this subdivision through the operation of joint assisted
45 outpatient treatment programs. Nothing in this subdivision shall be
46 interpreted to preclude the combination or coordination of efforts
47 between and among local governmental units and hospitals in providing
48 and coordinating assisted outpatient treatment.
49 (c) Criteria. A person may be ordered to receive assisted outpatient
50 treatment if the court finds that such person:
51 (1) is eighteen years of age or older; and
52 (2) is suffering from a mental illness; and
53 (3) is unlikely to survive safely in the community without super-
54 vision, based on a clinical determination; and
55 (4) has a history of lack of compliance with treatment for mental
56 illness that has:
S. 7596 6
1 (i) [prior to the filing of the petition,] at least twice within the
2 [last] thirty-six months PRIOR TO THE FILING OF THE PETITION, been a
3 significant factor in necessitating hospitalization in a hospital, or
4 receipt of services in a forensic or other mental health unit of a
5 correctional facility or a local correctional facility[, not including
6 any current period, or period ending within the last six months, during
7 which the person was or is hospitalized or incarcerated]; PROVIDED THAT
8 SUCH THIRTY-SIX MONTH PERIOD SHALL BE EXTENDED BY THE CUMULATIVE LENGTH
9 OF ANY HOSPITALIZATIONS OR INCARCERATIONS OF THE PERSON OCCURRING WITHIN
10 SUCH PERIOD; or
11 (ii) WITHIN THE FORTY-EIGHT MONTHS prior to the filing of the peti-
12 tion, resulted in one or more acts of serious violent behavior toward
13 self or others or threats of, or attempts at, serious physical harm to
14 self or others [within the last forty-eight months, not including any
15 current period, or period ending within the last six months, in which
16 the person was or is hospitalized or incarcerated]; PROVIDED THAT SUCH
17 FORTY-EIGHT MONTH PERIOD SHALL BE EXTENDED BY THE CUMULATIVE LENGTH OF
18 ANY HOSPITALIZATIONS OR INCARCERATIONS OF THE PERSON OCCURRING WITHIN
19 SUCH PERIOD; and
20 (5) is, as a result of his or her mental illness, unlikely to volun-
21 tarily participate in outpatient treatment that would enable him or her
22 to live safely in the community; and
23 (6) in view of his or her treatment history and [current] behavior, is
24 in need of assisted outpatient treatment in order to prevent a relapse
25 or deterioration which would be likely to result in serious harm to the
26 person or others as defined in section 9.01 of this article; and
27 (7) is likely to benefit from assisted outpatient treatment.
28 (d) Health care proxy. Nothing in this section shall preclude a person
29 with a health care proxy from being subject to a petition pursuant to
30 this chapter and consistent with article twenty-nine-C of the public
31 health law.
32 (e) Petition to the court. (1) A petition for an order authorizing
33 assisted outpatient treatment may be filed in the supreme or county
34 court in the county in which the subject of the petition is present or
35 reasonably believed to be present. Such petition may be initiated [only]
36 by [the following persons]:
37 (i) any person eighteen years of age or older with whom the subject of
38 the petition resides; or
39 (ii) the parent, spouse, sibling eighteen years of age or older, or
40 child eighteen years of age or older of the subject of the petition; or
41 (iii) the director of a hospital in which the subject of the petition
42 is hospitalized; or
43 (iv) the director of any public or charitable organization, agency or
44 home providing mental health services to the subject of the petition or
45 in whose institution the subject of the petition resides; or
46 (v) a qualified psychiatrist who is either supervising the treatment
47 of or treating the subject of the petition for a mental illness; or
48 (vi) a psychologist, licensed pursuant to article one hundred fifty-
49 three of the education law, or a social worker, licensed pursuant to
50 article one hundred fifty-four of the education law, who is treating the
51 subject of the petition for a mental illness; or
52 (vii) the director of community services, or his or her designee, or
53 the social services official, as defined in the social services law, of
54 the city or county in which the subject of the petition is present or
55 reasonably believed to be present; or
S. 7596 7
1 (viii) a parole officer or probation officer assigned to supervise the
2 subject of the petition.
3 (2) The petition shall state:
4 (i) each of the criteria for assisted outpatient treatment as set
5 forth in subdivision (c) of this section;
6 (ii) facts which support the petitioner's belief that the subject of
7 the petition meets each criterion, provided that the hearing on the
8 petition need not be limited to the stated facts; and
9 (iii) that the subject of the petition is present, or is reasonably
10 believed to be present, within the county where [such] THE petition is
11 filed.
12 (3) The petition shall be accompanied by an affirmation or affidavit
13 of a physician, who shall not be the petitioner, stating THAT SUCH
14 PHYSICIAN IS WILLING AND ABLE TO TESTIFY AT THE HEARING ON THE PETITION
15 AND THAT either [that]:
16 (i) such physician has personally examined the subject of the petition
17 no more than ten days prior to the submission of the petition[,] AND
18 recommends assisted outpatient treatment for the subject of the peti-
19 tion[, and is willing and able to testify at the hearing on the peti-
20 tion]; or
21 (ii) no more than ten days prior to the filing of the petition, such
22 physician or his or her designee has made appropriate attempts but has
23 not been successful in eliciting the cooperation of the subject of the
24 petition to submit to an examination, such physician has reason to
25 suspect that the subject of the petition meets the criteria for assisted
26 outpatient treatment, and such physician is willing and able to examine
27 the subject of the petition [and testify at the hearing on the petition]
28 PRIOR TO PROVIDING TESTIMONY.
29 (4) In counties with a population of less than seventy-five thousand,
30 the affirmation or affidavit required by paragraph three of this subdi-
31 vision may be made by a physician who is an employee of the office. The
32 office [is authorized to] SHALL make available, at no cost to the coun-
33 ty, a qualified physician for the purpose of making such affirmation or
34 affidavit consistent with the provisions of such paragraph.
35 (f) Service. The petitioner shall cause written notice of the petition
36 to be given to the subject of the petition and a copy thereof to be
37 given personally or by mail to the persons listed in section 9.29 of
38 this article, the mental hygiene legal service, the health care agent if
39 any such agent is known to the petitioner, the appropriate program coor-
40 dinator, and the appropriate director of community services, if such
41 director is not the petitioner.
42 (g) Right to counsel. The subject of the petition shall have the right
43 to be represented by the mental hygiene legal service, or privately
44 financed counsel, at all stages of a proceeding commenced under this
45 section.
46 (h) Hearing. (1) Upon receipt of the petition, the court shall fix the
47 date for a hearing. Such date shall be no later than three days from the
48 date such petition is received by the court, excluding Saturdays,
49 Sundays and holidays. Adjournments shall be permitted only for good
50 cause shown. In granting adjournments, the court shall consider the need
51 for further examination by a physician or the potential need to provide
52 assisted outpatient treatment expeditiously. The court shall cause the
53 subject of the petition, any other person receiving notice pursuant to
54 subdivision (f) of this section, the petitioner, the physician whose
55 affirmation or affidavit accompanied the petition, and such other
56 persons as the court may determine to be advised of such date. Upon such
S. 7596 8
1 date, or upon such other date to which the proceeding may be adjourned,
2 the court shall hear testimony and, if it be deemed advisable and the
3 subject of the petition is available, examine the subject of the peti-
4 tion in or out of court. If the subject of the petition does not appear
5 at the hearing, and appropriate attempts to elicit the attendance of the
6 subject have failed, the court may conduct the hearing in the subject's
7 absence. In such case, the court shall set forth the factual basis for
8 conducting the hearing without the presence of the subject of the peti-
9 tion.
10 (2) [The court shall not order assisted outpatient treatment unless an
11 examining] A physician[,] who [recommends assisted outpatient treatment
12 and] has personally examined the subject of the petition no more than
13 ten days before the filing of the petition[, testifies in person] SHALL
14 TESTIFY at the hearing[. Such physician shall state the facts and clin-
15 ical determinations which support the allegation that the subject of the
16 petition meets each of the criteria for assisted outpatient treatment]
17 ON BEHALF OF THE PETITIONER; PROVIDED THAT THE PARTIES MAY STIPULATE
18 UPON MUTUAL CONSENT THAT SUCH PHYSICIAN NEED NOT TESTIFY.
19 (3) If the subject of the petition has refused to be examined by a
20 physician, the court may request the subject to consent to an examina-
21 tion by a physician appointed by the court. If the subject of the peti-
22 tion does not consent and the court finds reasonable cause to believe
23 that the allegations in the petition are true, the court may order peace
24 officers, acting pursuant to their special duties, or police officers
25 who are members of an authorized police department or force, or of a
26 sheriff's department to take the subject of the petition into custody
27 and transport him or her to a hospital for examination by a physician.
28 IN CONSIDERING THE NEED FOR SUCH ORDER, THE COURT NEED NOT HOLD A HEAR-
29 ING, BUT MAY CHOOSE TO DO SO. Retention of the subject of the petition
30 under such order shall not exceed twenty-four hours. The examination of
31 the subject of the petition may be performed by the physician whose
32 affirmation or affidavit accompanied the petition pursuant to paragraph
33 three of subdivision (e) of this section, if such physician is privi-
34 leged by such hospital or otherwise authorized by such hospital to do
35 so. If such examination is performed by another physician, the examining
36 physician may consult with the physician whose affirmation or affidavit
37 accompanied the petition as to whether the subject meets the criteria
38 for assisted outpatient treatment.
39 (4) A physician who testifies pursuant to paragraph two of this subdi-
40 vision shall state: (i) the facts AND CLINICAL DETERMINATIONS which
41 support the allegation that the subject meets each of the criteria for
42 assisted outpatient treatment, (ii) that the treatment is the least
43 restrictive alternative, (iii) the recommended assisted outpatient
44 treatment, and (iv) the rationale for the recommended assisted outpa-
45 tient treatment. If the recommended assisted outpatient treatment
46 includes medication, such physician's testimony shall describe the types
47 or classes of medication which should be authorized, shall describe the
48 beneficial and detrimental physical and mental effects of such medica-
49 tion, and shall recommend whether such medication should be self-admin-
50 istered or administered by authorized personnel.
51 (5) The subject of the petition shall be afforded an opportunity to
52 present evidence, to call witnesses on his or her behalf, and to cross-
53 examine adverse witnesses.
54 (i) Written treatment plan. (1) The court shall not order assisted
55 outpatient treatment unless a physician appointed by the appropriate
56 director, in consultation with such director, develops and provides to
S. 7596 9
1 the court a proposed written treatment plan. The written treatment plan
2 shall include case management services or assertive community treatment
3 team services to provide care coordination. The written treatment plan
4 also shall include all categories of services, as set forth in paragraph
5 one of subdivision (a) of this section, which such physician recommends
6 that the subject of the petition receive. All service providers shall be
7 notified regarding their inclusion in the written treatment plan. If the
8 written treatment plan includes medication, it shall state whether such
9 medication should be self-administered or administered by authorized
10 personnel, and shall specify type and dosage range of medication most
11 likely to provide maximum benefit for the subject. If the written treat-
12 ment plan includes alcohol or substance abuse counseling and treatment,
13 such plan may include a provision requiring relevant testing for either
14 alcohol or illegal substances provided the physician's clinical basis
15 for recommending such plan provides sufficient facts for the court to
16 find (i) that such person has a history of alcohol or substance abuse
17 that is clinically related to the mental illness; and (ii) that such
18 testing is necessary to prevent a relapse or deterioration which would
19 be likely to result in serious harm to the person or others. If a direc-
20 tor is the petitioner, the written treatment plan shall be provided to
21 the court no later than the date of the hearing on the petition. If a
22 person other than a director is the petitioner, such plan shall be
23 provided to the court no later than the date set by the court pursuant
24 to paragraph three of subdivision (j) of this section.
25 (2) The physician appointed to develop the written treatment plan
26 shall provide [the following persons with] an opportunity to actively
27 participate in the development of such plan TO: the subject of the peti-
28 tion; the treating physician, if any; and upon the request of the
29 subject of the petition, an individual significant to the subject
30 including any relative, close friend or individual otherwise concerned
31 with the welfare of the subject. THE APPOINTED PHYSICIAN SHALL MAKE
32 REASONABLE EFFORTS TO GATHER INFORMATION WHICH MAY BE RELEVANT IN THE
33 DEVELOPMENT OF THE TREATMENT PLAN FROM THE SUBJECT OF THE PETITION'S
34 FAMILY OR SIGNIFICANT OTHERS. If the subject of the petition has
35 executed a health care proxy, the appointed physician shall consider any
36 directions included in such proxy in developing the written treatment
37 plan.
38 (3) [The court shall not order assisted outpatient treatment unless a]
39 A physician appearing on behalf of a director [testifies] SHALL TESTIFY
40 to explain the written proposed treatment plan; PROVIDED THAT THE
41 PARTIES MAY STIPULATE UPON MUTUAL CONSENT THAT SUCH PHYSICIAN NEED NOT
42 TESTIFY. Such physician shall state the categories of assisted outpa-
43 tient treatment recommended, the rationale for each such category, facts
44 which establish that such treatment is the least restrictive alterna-
45 tive, and, if the recommended assisted outpatient treatment plan
46 includes medication, such physician shall state the types or classes of
47 medication recommended, the beneficial and detrimental physical and
48 mental effects of such medication, and whether such medication should be
49 self-administered or administered by an authorized professional. If the
50 subject of the petition has executed a health care proxy, such physician
51 shall state the consideration given to any directions included in such
52 proxy in developing the written treatment plan. If a director is the
53 petitioner, testimony pursuant to this paragraph shall be given at the
54 hearing on the petition. If a person other than a director is the peti-
55 tioner, such testimony shall be given on the date set by the court
56 pursuant to paragraph three of subdivision (j) of this section.
S. 7596 10
1 (j) Disposition. (1) If after hearing all relevant evidence, the court
2 does not find by clear and convincing evidence that the subject of the
3 petition meets the criteria for assisted outpatient treatment, the court
4 shall dismiss the petition.
5 (2) If after hearing all relevant evidence, the court finds by clear
6 and convincing evidence that the subject of the petition meets the
7 criteria for assisted outpatient treatment, and there is no appropriate
8 and feasible less restrictive alternative, the court may order the
9 subject to receive assisted outpatient treatment for an initial period
10 not to exceed [six months] ONE YEAR. In fashioning the order, the court
11 shall specifically make findings by clear and convincing evidence that
12 the proposed treatment is the least restrictive treatment appropriate
13 and feasible for the subject. The order shall state an assisted outpa-
14 tient treatment plan, which shall include all categories of assisted
15 outpatient treatment, as set forth in paragraph one of subdivision (a)
16 of this section, which the assisted outpatient is to receive, but shall
17 not include any such category that has not been recommended in [both]
18 the proposed written treatment plan and [the] IN ANY testimony provided
19 to the court pursuant to subdivision (i) of this section.
20 (3) If after hearing all relevant evidence presented by a petitioner
21 who is not a director, the court finds by clear and convincing evidence
22 that the subject of the petition meets the criteria for assisted outpa-
23 tient treatment, and the court has yet to be provided with a written
24 proposed treatment plan and testimony pursuant to subdivision (i) of
25 this section, the court shall order the appropriate director to provide
26 the court with such plan and testimony no later than the third day,
27 excluding Saturdays, Sundays and holidays, immediately following the
28 date of such order; PROVIDED THAT THE PARTIES MAY STIPULATE UPON MUTUAL
29 CONSENT THAT SUCH TESTIMONY NEED NOT BE PROVIDED. Upon receiving such
30 plan and ANY REQUIRED testimony, the court may order assisted outpatient
31 treatment as provided in paragraph two of this subdivision.
32 (4) A court may order the patient to self-administer psychotropic
33 drugs or accept the administration of such drugs by authorized personnel
34 as part of an assisted outpatient treatment program. Such order may
35 specify the type and dosage range of such psychotropic drugs and such
36 order shall be effective for the duration of such assisted outpatient
37 treatment.
38 (5) If the petitioner is the director of a hospital that operates an
39 assisted outpatient treatment program, the court order shall direct the
40 hospital director to provide or arrange for all categories of assisted
41 outpatient treatment for the assisted outpatient throughout the period
42 of the order. For all other persons, the order shall require the direc-
43 tor of community services of the appropriate local governmental unit to
44 provide or arrange for all categories of assisted outpatient treatment
45 for the assisted outpatient throughout the period of the order. THE
46 ORDER SHALL STATE THAT IF DURING THE PERIOD OF THE ORDER THE ASSISTED
47 OUTPATIENT RELOCATES TO A LOCATION WITHIN THE STATE OF NEW YORK NOT
48 SERVED BY THE DIRECTOR WHO HAS BEEN DIRECTED TO PROVIDE OR ARRANGE FOR
49 THE ASSISTED OUTPATIENT TREATMENT, SUCH OBLIGATION SHALL TRANSFER TO THE
50 DIRECTOR OF COMMUNITY SERVICES OF THE LOCAL GOVERNMENTAL UNIT TO WHICH
51 THE ASSISTED OUTPATIENT HAS RELOCATED.
52 (6) The director shall cause a copy of any court order issued pursuant
53 to this section to be served personally, or by mail, facsimile or elec-
54 tronic means, upon the assisted outpatient, the mental hygiene legal
55 service or anyone acting on the assisted outpatient's behalf, the
S. 7596 11
1 original petitioner, identified service providers, and all others enti-
2 tled to notice under subdivision (f) of this section.
3 (k) Petition for [additional periods of] CONTINUED treatment. (1)
4 WITHIN THIRTY DAYS PRIOR TO THE EXPIRATION OF AN ORDER PURSUANT TO THIS
5 SECTION, THE APPROPRIATE DIRECTOR SHALL REVIEW WHETHER THE ASSISTED
6 OUTPATIENT CONTINUES TO MEET THE CRITERIA FOR ASSISTED OUTPATIENT TREAT-
7 MENT. UPON DETERMINING THAT SUCH CRITERIA CONTINUE TO BE MET, HE OR SHE
8 SHALL PETITION THE COURT TO ORDER CONTINUED ASSISTED OUTPATIENT TREAT-
9 MENT PURSUANT TO PARAGRAPH TWO OF THIS SUBDIVISION. UPON DETERMINING
10 THAT ONE OR MORE OF SUCH CRITERIA ARE NO LONGER MET, SUCH DIRECTOR SHALL
11 NOTIFY THE PROGRAM COORDINATOR IN WRITING THAT A PETITION FOR CONTINUED
12 ASSISTED OUTPATIENT TREATMENT IS NOT WARRANTED, STATING THE BASIS FOR
13 SUCH DETERMINATION.
14 (2) Within thirty days prior to the expiration of an order of assisted
15 outpatient treatment, the appropriate director or the current petition-
16 er, if the current petition was filed pursuant to subparagraph (i) or
17 (ii) of paragraph one of subdivision (e) of this section, and the
18 current petitioner retains his or her original status pursuant to the
19 applicable subparagraph, may petition the court to order continued
20 assisted outpatient treatment for a period not to exceed one year from
21 the expiration date of the current order. If the court's disposition of
22 such petition does not occur prior to the expiration date of the current
23 order, the current order shall remain in effect until such disposition.
24 The procedures for obtaining any order pursuant to this subdivision
25 shall be in accordance with the provisions of the foregoing subdivisions
26 of this section; provided that the time restrictions included in para-
27 graph four of subdivision (c) of this section shall not be applicable.
28 The notice provisions set forth in paragraph six of subdivision (j) of
29 this section shall be applicable. Any court order requiring periodic
30 blood tests or urinalysis for the presence of alcohol or illegal drugs
31 shall be subject to review after six months by the physician who devel-
32 oped the written treatment plan or another physician designated by the
33 director, and such physician shall be authorized to terminate such blood
34 tests or urinalysis without further action by the court.
35 (3) IF NEITHER THE APPROPRIATE DIRECTOR NOR THE CURRENT PETITIONER
36 PETITION FOR CONTINUED ASSISTED OUTPATIENT TREATMENT PURSUANT TO THIS
37 PARAGRAPH AND THE ORDER OF THE COURT EXPIRES, ANY OTHER PERSON AUTHOR-
38 IZED TO PETITION PURSUANT TO PARAGRAPH ONE OF SUBDIVISION (E) OF THIS
39 SECTION MAY BRING A NEW PETITION FOR ASSISTED OUTPATIENT TREATMENT. IF
40 SUCH NEW PETITION IS FILED LESS THAN SIXTY DAYS AFTER THE EXPIRATION OF
41 SUCH ORDER, THE TIME RESTRICTIONS PROVIDED IN PARAGRAPH FOUR OF SUBDIVI-
42 SION (C) OF THIS SECTION SHALL NOT BE APPLICABLE TO THE NEW PETITION.
43 (l) Petition for an order to stay, vacate or modify. (1) In addition
44 to any other right or remedy available by law with respect to the order
45 for assisted outpatient treatment, the assisted outpatient, the mental
46 hygiene legal service, or anyone acting on the assisted outpatient's
47 behalf may petition the court on notice to the director, the original
48 petitioner, and all others entitled to notice under subdivision (f) of
49 this section to stay, vacate or modify the order.
50 (2) The appropriate director shall petition the court for approval
51 before instituting a proposed material change in the assisted outpatient
52 treatment plan, unless such change is authorized by the order of the
53 court. Such petition shall be filed on notice to all parties entitled to
54 notice under subdivision (f) of this section. Not later than five days
55 after receiving such petition, excluding Saturdays, Sundays and holi-
56 days, the court shall hold a hearing on the petition; provided that if
S. 7596 12
1 the assisted outpatient informs the court that he or she agrees to the
2 proposed material change, the court may approve such change without a
3 hearing. Non-material changes may be instituted by the director without
4 court approval. For the purposes of this paragraph, a material change is
5 an addition or deletion of a category of services to or from a current
6 assisted outpatient treatment plan, or any deviation without the
7 assisted outpatient's consent from the terms of a current order relating
8 to the administration of psychotropic drugs.
9 (m) Appeals. Review of an order issued pursuant to this section shall
10 be had in like manner as specified in section 9.35 of this article;
11 PROVIDED THAT NOTICE SHALL BE PROVIDED TO ALL PARTIES ENTITLED TO NOTICE
12 UNDER SUBDIVISION (F) OF THIS SECTION.
13 (n) Failure to comply with assisted outpatient treatment. Where in the
14 clinical judgment of a physician, (i) the assisted outpatient[,] has
15 failed or refused to comply with the assisted outpatient treatment, (ii)
16 efforts [were] HAVE BEEN made to solicit compliance, and (iii) [such]
17 THE assisted outpatient may be in need of involuntary admission to a
18 hospital pursuant to section 9.27 of this article or immediate observa-
19 tion, care and treatment pursuant to section 9.39 or 9.40 of this arti-
20 cle, such physician may request the director of community services, the
21 director's designee, or any physician designated by the director of
22 community services pursuant to section 9.37 of this article, to direct
23 the removal of [such] THE assisted outpatient to an appropriate hospital
24 for an examination to determine if [such person has a mental illness for
25 which] HE OR SHE IS IN NEED OF hospitalization [is necessary] pursuant
26 to section 9.27, 9.39 or 9.40 of this article[. Furthermore, if such
27 assisted outpatient refuses to take medications as required by the court
28 order, or he or she refuses to take, or fails a blood test, urinalysis,
29 or alcohol or drug test as required by the court order, such physician
30 may consider such refusal or failure when determining whether]; PROVIDED
31 THAT IF, AFTER EFFORTS TO SOLICIT COMPLIANCE, SUCH PHYSICIAN DETERMINES
32 THAT THE ASSISTED OUTPATIENT'S FAILURE TO COMPLY WITH THE ASSISTED
33 OUTPATIENT TREATMENT INCLUDES A SUBSTANTIAL FAILURE TO TAKE MEDICATION,
34 SUBMIT TO BLOOD TESTING OR URINALYSIS, OR RECEIVE TREATMENT FOR ALCOHOL
35 OR SUBSTANCE ABUSE, SUCH PHYSICIAN SHALL PRESUME THAT the assisted
36 outpatient is in need of an examination [to determine whether he or she
37 has a mental illness for which hospitalization is necessary] PURSUANT TO
38 THIS SUBDIVISION. Upon the request of such physician, the director, the
39 director's designee, or any physician designated pursuant to section
40 9.37 of this article, may direct peace officers, acting pursuant to
41 their special duties, or police officers who are members of an author-
42 ized police department or force or of a sheriff's department to take the
43 assisted outpatient into custody and transport him or her to the hospi-
44 tal operating the assisted outpatient treatment program or to any hospi-
45 tal authorized by the director of community services to receive such
46 persons. Such law enforcement officials shall carry out such directive.
47 Upon the request of such physician, the director, the director's desig-
48 nee, or any physician designated pursuant to section 9.37 of this arti-
49 cle, an ambulance service, as defined by subdivision two of section
50 three thousand one of the public health law, or an approved mobile
51 crisis outreach team as defined in section 9.58 of this article shall be
52 authorized to take into custody and transport [any such person] THE
53 ASSISTED OUTPATIENT to the hospital operating the assisted outpatient
54 treatment program, or to any other hospital authorized by the director
55 of community services to receive such persons. Any director of community
56 services, or designee, shall be authorized to direct the removal of an
S. 7596 13
1 assisted outpatient who is present in his or her county to an appropri-
2 ate hospital, in accordance with the provisions of this subdivision,
3 based upon a determination of the appropriate director of community
4 services directing the removal of [such] THE assisted outpatient pursu-
5 ant to this subdivision. [Such person] THE ASSISTED OUTPATIENT may be
6 retained for observation, care and treatment and further examination in
7 the hospital for up to seventy-two hours to permit a physician to deter-
8 mine whether [such person has a mental illness and] HE OR SHE is in need
9 of involuntary care and treatment in a hospital pursuant to the
10 provisions of this article. Any continued involuntary retention OF THE
11 ASSISTED OUTPATIENT in such hospital beyond the initial seventy-two hour
12 period shall be in accordance with the provisions of this article relat-
13 ing to the involuntary admission and retention of a person. If at any
14 time during the seventy-two hour period the [person] ASSISTED OUTPA-
15 TIENT is determined not to meet the involuntary admission and retention
16 provisions of this article, and does not agree to stay in the hospital
17 as a voluntary or informal patient, he or she must be released. Failure
18 to comply with an order of assisted outpatient treatment shall not be
19 grounds for involuntary civil commitment or a finding of contempt of
20 court.
21 (o) Effect of determination that a person is in need of assisted
22 outpatient treatment. The determination by a court that a person is in
23 need of assisted outpatient treatment shall not be construed as or
24 deemed to be a determination that such person is incapacitated pursuant
25 to article eighty-one of this chapter.
26 (p) False petition. A person making a false statement or providing
27 false information or false testimony in a petition or hearing under this
28 section shall be [subject] LIABLE to criminal prosecution pursuant to
29 article one hundred seventy-five or article two hundred ten of the penal
30 law.
31 (q) Exception. Nothing in this section shall be construed to affect
32 the ability of the director of a hospital to receive, admit, or retain
33 patients who otherwise meet the provisions of this article regarding
34 receipt, retention or admission.
35 (r) Education and training. (1) The office of mental health, in
36 consultation with the office of court administration, shall prepare
37 educational and training materials on the use of this section, which
38 shall be made available to local governmental units, providers of
39 services, judges, court personnel, law enforcement officials and the
40 general public.
41 (2) The office, in consultation with the office of court adminis-
42 tration, shall establish a mental health training program for supreme
43 and county court judges and court personnel, AND SHALL PROVIDE SUCH
44 TRAINING WITH SUCH FREQUENCY AND IN SUCH LOCATIONS AS MAY BE APPROPRIATE
45 TO MEET STATEWIDE NEEDS. Such training shall focus on the use of this
46 section and generally address issues relating to mental illness and
47 mental health treatment.
48 S 6. Section 29.15 of the mental hygiene law is amended by adding a
49 new subdivision (o) to read as follows:
50 (O) IF THE DIRECTOR OF A HOSPITAL DOES NOT PETITION FOR ASSISTED
51 OUTPATIENT TREATMENT PURSUANT TO SECTION 9.60 OF THIS CHAPTER UPON THE
52 DISCHARGE OF AN INPATIENT ADMITTED PURSUANT TO SECTION 9.27, 9.39 OR
53 9.40 OF THIS CHAPTER, OR UPON THE EXPIRATION OF A PERIOD OF CONDITIONAL
54 RELEASE FOR SUCH INPATIENT, SUCH DIRECTOR SHALL REPORT SUCH DISCHARGE OR
55 SUCH EXPIRATION IN WRITING TO THE DIRECTOR OF COMMUNITY SERVICES OF THE
56 LOCAL GOVERNMENTAL UNIT IN WHICH THE INPATIENT IS EXPECTED TO RESIDE.
S. 7596 14
1 S 7. Subdivision 2 of section 404 of the correction law, as added by
2 chapter 766 of the laws of 1976, is amended to read as follows:
3 2. The director may discharge any inmate at the expiration of the term
4 for which he was sentenced who is still mentally ill, but who, in the
5 opinion of the director, is reasonably safe to be at large. PRIOR TO
6 SUCH DISCHARGE, THE DIRECTOR SHALL REPORT IN WRITING TO THE DIRECTOR OF
7 COMMUNITY SERVICES OF THE LOCAL GOVERNMENTAL UNIT IN WHICH THE INMATE IS
8 EXPECTED TO RESIDE AND TO THE COMMISSIONER OF MENTAL HEALTH. SUCH REPORT
9 SHALL INCLUDE A RECOMMENDATION AS TO WHETHER THE INPATIENT MEETS THE
10 CRITERIA FOR ASSISTED OUTPATIENT TREATMENT PURSUANT TO SECTION 9.60 OF
11 THE MENTAL HYGIENE LAW, AND STATE THE BASIS FOR SUCH RECOMMENDATION.
12 Such discharged inmate shall be entitled to suitable clothing adapted to
13 the season in which he is discharged, and if it cannot be otherwise
14 obtained, the business officer, or other officer having like duties
15 shall, upon the order of the director, or of the commissioner of mental
16 hygiene, as the case may be, furnish the same, and money in an amount to
17 be fixed by such commissioner with the approval of the director of the
18 budget, to defray his expenses until he can reach his relatives or
19 friends, or find employment to earn a subsistence.
20 S 8. Section 18 of chapter 408 of the laws of 1999, constituting
21 Kendra's Law, as amended by chapter 158 of the laws of 2005, is amended
22 to read as follows:
23 S 18. This act shall take effect immediately, provided that section
24 fifteen of this act shall take effect April 1, 2000, provided, further,
25 that subdivision (e) of section 9.60 of the mental hygiene law as added
26 by section six of this act shall be effective 90 days after this act
27 shall become law; [and that this act shall expire and be deemed repealed
28 June 30, 2010;] and, provided, further, that the amendments to section
29 9.61 of the mental hygiene law made by section seven of this act shall
30 not affect the expiration of such section and shall be deemed to expire
31 therewith.
32 S 9. Severability. If any clause, sentence, paragraph, section or
33 part of this act shall be adjudged by any court of competent jurisdic-
34 tion to be invalid, and after exhaustion of all further judicial review,
35 the judgment shall not affect, impair or invalidate the remainder there-
36 of, but shall be confined in its operations to the clause, sentence,
37 paragraph, section or part thereof directly involved in the controversy
38 in which the judgment shall have been rendered.
39 S 10. This act shall take effect June 30, 2010; provided, however, if
40 this act shall become a law after such date it shall take effect imme-
41 diately and shall be deemed to have been in full force and effect on and
42 after June 30, 2010.
