S T A T E O F N E W Y O R K ________________________________________________________________________ 3018 2011-2012 Regular Sessions I N S E N A T E February 7, 2011 ___________ Introduced by Sen. HUNTLEY -- 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 education law, in relation to creating mental health incident review panels THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The mental hygiene law is amended by adding a new section 2 31.37 to read as follows: 3 S 31.37 MENTAL HEALTH INCIDENT REVIEW PANELS. 4 (A) THE COMMISSIONER IS AUTHORIZED TO ESTABLISH A MENTAL HEALTH INCI- 5 DENT REVIEW PANEL FOR THE PURPOSES OF REVIEWING THE CIRCUMSTANCES AND 6 EVENTS RELATED TO A SERIOUS INCIDENT INVOLVING A PERSON WITH MENTAL 7 ILLNESS. FOR PURPOSES OF THIS SECTION, A "SERIOUS INCIDENT INVOLVING A 8 PERSON WITH MENTAL ILLNESS" MEANS AN INCIDENT OCCURRING IN THE COMMUNITY 9 IN WHICH A PERSON WITH A SERIOUS MENTAL ILLNESS IS PHYSICALLY INJURED OR 10 CAUSES PHYSICAL INJURY TO ANOTHER PERSON, OR SUFFERS A SERIOUS AND 11 PREVENTABLE MEDICAL COMPLICATION OR BECOMES INVOLVED IN A CRIMINAL INCI- 12 DENT INVOLVING VIOLENCE. A PANEL SHALL CONDUCT A REVIEW OF SUCH SERIOUS 13 INCIDENT IN AN ATTEMPT TO IDENTIFY PROBLEMS OR GAPS IN MENTAL HEALTH 14 DELIVERY SYSTEMS AND TO MAKE RECOMMENDATIONS FOR CORRECTIVE ACTIONS TO 15 IMPROVE THE PROVISION OF MENTAL HEALTH OR RELATED SERVICES, TO IMPROVE 16 THE COORDINATION, INTEGRATION AND ACCOUNTABILITY OF CARE IN THE MENTAL 17 HEALTH SERVICE SYSTEM, AND TO ENHANCE INDIVIDUAL AND PUBLIC SAFETY. 18 (B) A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL INCLUDE, BUT NEED NOT 19 BE LIMITED TO, REPRESENTATIVES FROM THE OFFICE OF MENTAL HEALTH AND THE 20 LOCAL GOVERNMENTAL UNIT WHERE THE SERIOUS INCIDENT INVOLVING A PERSON 21 WITH A MENTAL ILLNESS OCCURRED. A MENTAL HEALTH INCIDENT REVIEW PANEL 22 MAY ALSO INCLUDE, IF DEEMED APPROPRIATE BY THE COMMISSIONER BASED ON THE 23 NATURE OF THE SERIOUS INCIDENT BEING REVIEWED, ONE OR MORE REPRESEN- 24 TATIVES FROM MENTAL HEALTH PROVIDERS, LOCAL DEPARTMENTS OF SOCIAL EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00284-01-1 S. 3018 2 1 SERVICES, HUMAN SERVICES PROGRAMS, HOSPITALS, LOCAL SCHOOLS, EMERGENCY 2 MEDICAL OR MENTAL HEALTH SERVICES, THE OFFICE OF THE COUNTY ATTORNEY, 3 STATE OR LOCAL LAW ENFORCEMENT AGENCIES, THE OFFICE OF THE MEDICAL EXAM- 4 INER OR THE OFFICE OF THE CORONER, OR OTHER APPROPRIATE STATE OR LOCAL 5 OFFICIALS. 6 (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY AND TO 7 THE EXTENT CONSISTENT WITH FEDERAL LAW, A MENTAL HEALTH INCIDENT REVIEW 8 PANEL SHALL HAVE ACCESS TO THOSE CLIENT-IDENTIFIABLE MENTAL HEALTH 9 RECORDS, AS WELL AS ALL RECORDS, DOCUMENTATION AND REPORTS RELATING TO 10 THE INVESTIGATION OF AN INCIDENT BY A FACILITY IN ACCORDANCE WITH REGU- 11 LATIONS OF THE COMMISSIONER, WHICH ARE NECESSARY FOR THE INVESTIGATION 12 OF THE INCIDENT AND THE PREPARATION OF A REPORT OF THE INCIDENT, AS 13 PROVIDED IN SUBDIVISION (E) OF THIS SECTION. A MENTAL HEALTH INCIDENT 14 REVIEW PANEL ESTABLISHED PURSUANT TO THIS SECTION SHALL BE PROVIDED WITH 15 ACCESS TO ALL OTHER RECORDS IN THE POSSESSION OF STATE OR LOCAL OFFI- 16 CIALS OR AGENCIES, WITHIN TWENTY-ONE DAYS OF RECEIPT OF A REQUEST, 17 EXCEPT THOSE RECORDS PROTECTED BY SECTION 190.25 OF THE CRIMINAL PROCE- 18 DURE LAW. 19 (D) MENTAL HEALTH INCIDENT REVIEW PANELS, MEMBERS OF THE REVIEW PANELS 20 AND PERSONS WHO PRESENT INFORMATION TO A REVIEW PANEL SHALL HAVE IMMUNI- 21 TY FROM CIVIL AND CRIMINAL LIABILITY FOR ALL REASONABLE AND GOOD FAITH 22 ACTIONS TAKEN PURSUANT TO THIS SECTION, AND SHALL NOT BE QUESTIONED IN 23 ANY CIVIL OR CRIMINAL PROCEEDING REGARDING ANY OPINIONS FORMED AS A 24 RESULT OF A MEETING OF SUCH REVIEW PANEL. NOTHING IN THIS SECTION SHALL 25 BE CONSTRUED TO PREVENT A PERSON FROM TESTIFYING AS TO INFORMATION 26 OBTAINED INDEPENDENTLY OF A MENTAL HEALTH INCIDENT REVIEW PANEL, OR 27 INFORMATION WHICH IS PUBLIC. 28 (E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, ALL 29 MEETINGS CONDUCTED, ALL REPORTS AND RECORDS MADE AND MAINTAINED AND ALL 30 BOOKS AND PAPERS OBTAINED BY A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL 31 BE CONFIDENTIAL, AND SHALL NOT BE OPEN OR MADE AVAILABLE, EXCEPT BY 32 COURT ORDER OR AS SET FORTH IN SUBDIVISION (G) OF THIS SECTION. EACH 33 MENTAL HEALTH INCIDENT REVIEW PANEL SHALL DEVELOP A REPORT OF THE INCI- 34 DENT INVESTIGATED. SUCH REPORT SHALL NOT CONTAIN ANY INDIVIDUALLY IDEN- 35 TIFIABLE INFORMATION, AND IT SHALL BE PROVIDED TO THE OFFICE OF MENTAL 36 HEALTH UPON COMPLETION. SUCH REPORTS MUST BE APPROVED BY THE OFFICE OF 37 MENTAL HEALTH PRIOR TO BECOMING FINAL. 38 (F) IF QUALITY PROBLEMS OF PARTICULAR MENTAL HEALTH PROGRAMS ARE IDEN- 39 TIFIED BASED ON SUCH REVIEWS, THE COMMISSIONER IS AUTHORIZED, PURSUANT 40 TO THE RELEVANT PROVISIONS OF THIS CHAPTER, TO TAKE APPROPRIATE ACTIONS 41 REGARDING THE LICENSURE OF PARTICULAR PROVIDERS, TO REFER THE ISSUE TO 42 OTHER RESPONSIBLE PARTIES FOR INVESTIGATION, OR TO TAKE OTHER APPROPRI- 43 ATE ACTION. 44 (G) IN HIS OR HER DISCRETION, THE COMMISSIONER SHALL BE AUTHORIZED TO 45 PROVIDE THE FINAL REPORT OF A REVIEW PANEL OR PORTIONS THEREOF TO ANY 46 INDIVIDUAL OR ENTITY FOR WHOM THE REPORT MAKES RECOMMENDATIONS FOR 47 CORRECTIVE OR OTHER APPROPRIATE ACTIONS THAT SHOULD BE TAKEN. 48 (H) THE COMMISSIONER SHALL SUBMIT AN ANNUAL CUMULATIVE REPORT TO THE 49 GOVERNOR AND THE LEGISLATURE INCORPORATING THE DATA IN THE MENTAL HEALTH 50 INCIDENT REVIEW PANEL REPORTS AND INCLUDING A SUMMARY OF THE FINDINGS 51 AND RECOMMENDATIONS MADE BY SUCH REVIEW PANELS. THE ANNUAL CUMULATIVE 52 REPORTS MAY THEREAFTER BE MADE AVAILABLE TO THE PUBLIC. 53 S 2. Subdivision (c) of section 33.13 of the mental hygiene law is 54 amended by adding a new paragraph 15 to read as follows: S. 3018 3 1 15. TO A MENTAL HEALTH INCIDENT REVIEW PANEL, OR MEMBERS THEREOF, 2 ESTABLISHED BY THE COMMISSIONER PURSUANT TO SECTION 31.37 OF THIS TITLE, 3 IN CONNECTION WITH INCIDENT REVIEWS CONDUCTED BY SUCH PANEL. 4 S 3. Subdivision 3 of section 6527 of the education law, as amended by 5 chapter 257 of the laws of 1987, is amended to read as follows: 6 3. No individual who serves as a member of (a) a committee established 7 to administer a utilization review plan of a hospital, including a 8 hospital as defined in article twenty-eight of the public health law or 9 a hospital as defined in subdivision ten of section 1.03 of the mental 10 hygiene law, or (b) a committee having the responsibility of the inves- 11 tigation of an incident reported pursuant to section 29.29 of the mental 12 hygiene law or the evaluation and improvement of the quality of care 13 rendered in a hospital as defined in article twenty-eight of the public 14 health law or a hospital as defined in subdivision ten of section 1.03 15 of the mental hygiene law, or (c) any medical review committee or 16 subcommittee thereof of a local, county or state medical, dental, podia- 17 try or optometrical society, any such society itself, a professional 18 standards review organization or an individual when such committee, 19 subcommittee, society, organization or individual is performing any 20 medical or quality assurance review function including the investigation 21 of an incident reported pursuant to section 29.29 of the mental hygiene 22 law, either described in clauses (a) and (b) of this subdivision, 23 required by law, or involving any controversy or dispute between (i) a 24 physician, dentist, podiatrist or optometrist or hospital administrator 25 and a patient concerning the diagnosis, treatment or care of such 26 patient or the fees or charges therefor or (ii) a physician, dentist, 27 podiatrist or optometrist or hospital administrator and a provider of 28 medical, dental, podiatric or optometrical services concerning any 29 medical or health charges or fees of such physician, dentist, podiatrist 30 or optometrist, or (d) a committee appointed pursuant to section twen- 31 ty-eight hundred five-j of the public health law to participate in the 32 medical and dental malpractice prevention program, or (e) any individual 33 who participated in the preparation of incident reports required by the 34 department of health pursuant to section twenty-eight hundred five-l of 35 the public health law, or (f) a committee established to administer a 36 utilization review plan, or a committee having the responsibility of 37 evaluation and improvement of the quality of care rendered, in a health 38 maintenance organization organized under article forty-four of the 39 public health law or article forty-three of the insurance law, including 40 a committee of an individual practice association or medical group 41 acting pursuant to a contract with such a health maintenance organiza- 42 tion, OR (G) A MENTAL HEALTH INCIDENT REVIEW PANEL CONVENED PURSUANT TO 43 SECTION 31.37 OF THE MENTAL HYGIENE LAW, shall be liable in damages to 44 any person for any action taken or recommendations made, by him OR HER 45 within the scope of his OR HER function in such capacity provided that 46 (a) such individual has taken action or made recommendations within the 47 scope of his OR HER function and without malice, and (b) in the reason- 48 able belief after reasonable investigation that the act or recommenda- 49 tion was warranted, based upon the facts disclosed. 50 Neither the proceedings nor the records relating to performance of a 51 medical or a quality assurance review function or participation in a 52 medical and dental malpractice prevention program nor any report 53 required by the department of health pursuant to section twenty-eight 54 hundred five-l of the public health law described herein, including the 55 investigation of an incident reported pursuant to section 29.29 of the 56 mental hygiene law OR REVIEWED PURSUANT TO SECTION 31.37 OF THE MENTAL S. 3018 4 1 HYGIENE LAW, shall be subject to disclosure under article thirty-one of 2 the civil practice law and rules except as hereinafter provided or as 3 provided by any other provision of law. No person in attendance at a 4 meeting when a medical or a quality assurance review or a medical and 5 dental malpractice prevention program or an incident reporting function 6 described herein was performed, including the investigation of an inci- 7 dent reported pursuant to section 29.29 of the mental hygiene law OR AN 8 INCIDENT REVIEWED PURSUANT TO SECTION 31.37 OF THE MENTAL HYGIENE LAW, 9 shall be required to testify as to what transpired thereat. The prohibi- 10 tion relating to discovery of testimony shall not apply to the state- 11 ments made by any person in attendance at such a meeting who is a party 12 to an action or proceeding the subject matter of which was reviewed at 13 such meeting. 14 S 4. This act shall take effect on the thirtieth day after it shall 15 have become a law.