This bill has been amended

Bill S2225-2013

Enhances the assisted outpatient treatment program and eliminates the expiration and repeal of Kendra's Law

Enhances the assisted outpatient treatment program; eliminates the expiration and repeal of Kendra's Law.

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  • Jan 14, 2013: REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES

Memo

BILL NUMBER:S2225

TITLE OF BILL: An act to amend the mental hygiene law and the correction law, in relation to enhancing the assisted outpatient treatment program; and to amend Kendra's Law, in relation to making the provisions thereof permanent

PURPOSE OR GENERAL IDEA OF BILL: To improve care for people with serious mental illness, and protect the safety of patients and the public by streamlining and improving New York's Assisted Outpatient Treatment (AOT) program (Kendra's Law).

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends Mental Hygiene Law (MHL) S 7.17(f) to require that AOT program coordinators monitor local programs to ensure that expiring ACT orders are adequately reviewed to consider the need for renewal of the order; to ensure appropriate assignment of a director for each outpatient; and to monitor local needs for training of judges and court personnel in order for the office of mental health to adequately provide such training.

Section 2 provides that the Commissioner of Mental Health shall develop an educational pamphlet on the process of petitioning for AOT to be made available to persons wishing to submit reports of individuals who may be in need of AOT, as well as disseminated to family members and other individuals eligible to petition for AOT.

Section 3 amends 5 9.47 of the MHL to clarify that directors of community services shall be responsible for ensuring that reports of persons who may be in need of continued AOT orders are subject to a timely investigation. It also provides that directors of community services shall notify program coordinators when AOT patients cannot be located or are believed to have taken residence outside of the local governmental unit served.

Section 4 amends MHL § 9.48 to require that ACT program directors' quarterly reports to program coordinators include information on any expired AOT court orders, including the determination made as to whether to petition for renewal of the AOT, the basis for such determination, and the court's disposition of the renewal petition, if any.

Section 5 amends MHL § 9.60 to clarify that assisted outpatient treatment services provided may include: medication education or symptom management education; appointment of a representative payee; and that tests for alcohol or drugs may be random. This section also provides that the parties to the treatment order may stipulate, upon mutual consent, that an examining physician need not testify in court. The bill also provides that the appointed physician shall make a reasonable effort to gather relevant information for the development of a treatment plan from a member or members of the patient's family or significant other.

This section also clarifies that directors of hospitals or superintendents of correctional facilities may initiate a petition.

This section also requires the Commissioner to establish by regulation a procedure to ensure that reports of persons who may be in need of AOT that are made by family and community members of such person axe, if warranted, investigated in a timely manner, and that ACT petitions are filed, where appropriate.

This section also provides that the Commissioner shall promulgate regulations to require that prior to a assisted outpatient relocating to a location within the state of New York which is not served by his or her current director of community services, that patient or other appropriate party must notify the program coordinator. The program coordinator shall then redetermine who the appropriate director shall be, and cause a copy of the court order and treatment plan to be transmitted to the new director.

This section also provides that a director shall review whether the assisted outpatient continues to meet ACT criteria within 30 days before the expiration of an order for AOT. If the director determines that such assisted outpatient no longer meets the criteria, such director is required to give notice to the program coordinator that a petition for continued AOT is unnecessary. However, if such assisted outpatient continues to meet the criteria, as determined by the director, such director shall file a petition for continued treatment.

This provision clarifies procedures any other person authorized to petition for continued AOT may use to bring such petition in the event that the appropriate director or current petitioner does not petition for continued AOT prior to the expiration of the court order.

This section also provides that counties shall notify the department when an assisted outpatient is missing and thereby unavailable for an evaluation as to whether he or she continues to meet AOT criteria. It also provides that when a patient is missing upon the expiration date of the order, the order shall be extended until sixty days after such patient is found.

Section 6 amends MHL § 29.15 to provide that if the director of the hospital does not petition for AOT upon the discharge of an involuntarily committed inpatient or upon the expiration of a period of conditional release for such inpatient, such director shall report the discharge in writing to the director of community services of the local government unit where the inpatient is expected to reside.

Section 7 amends subdivision 1 of section 404 of the correction law to require that, prior to discharging an inmate who is still mentally ill, the director shall, where appropriate, either apply for a person's admission to a hospital for care and treatment, or initiate a petition for an order authorizing assisted outpatient treatment, or the commissioner may apply for the person's admission to a secure treatment facility.

Section 8 would repeal the current sunset date of June 30, 2015 to make the provisions of Kendra's Law permanent.

Section 9 Severability.

Section 10 states that this act shall take effect immediately.

JUSTIFICATION: In 1999, the legislature enacted "Kendra's Law," establishing a statewide court-ordered assisted outpatient treatment (AOT) program to improve outcomes for persons with severe mental illness who, in view of their treatment history and present circumstances, are likely to have difficulty living safely in the community. At the approach of the law's original 2005 expiration date, the legislature took note of Office of Mental Health (OMH) research documenting declines in rates of homelessness, hospitalization, substance abuse, alcoholism, violence, arrest and incarceration, and documented increases in treatment compliance, service engagement and positive consumer perceptions. In 2005 and 2010, the legislature opted to extend Kendra's Law for an additional five years to further evaluate the program.

On June 30, 2009, a team of independent researchers released the report of their long term study of AOT throughout New York State and in October, 2010 Psychiatric Services published six peer reviewed studies on the AOT program. These reports confirm the earlier OMH data. These studies found patients given mandatory outpatient treatment who were more violent to begin with - were nevertheless four times less likely than members of the control group to perpetrate serious violence after undergoing assisted outpatient treatment and found less frequent psychiatric hospitalizations, shorter length of hospitalizations, reduction in the likelihood of arrest, higher social functioning, slightly less stigma and no increase in perceived coercion. AOT stimulates service providers efforts to prioritize care for AOT recipients; judges hearing AOT cases could benefit from additional AOT training; counties favored increasing the availability of stipulations to reduce the court burden, costs, and transportation burdens; recipients are far more likely than other patients to consistently receive psychotropic medications appropriate to their psychiatric condition; that those who receive AOT for periods of at least one year are more likely than those who receive AOT for shorter periods to sustain gains after leaving the program; that the law has been applied in a non-discriminatory manner; and that the court order itself, in addition to high quality services, is a significant factor in the program's success.

The experience of thousands of patients, treatment providers and families who have utilized Kendra's Law since 1999, point to several areas where the law should be improved to achieve costs savings, promote smoother functioning of the AOT program and easier access to those who stand to benefit from it. The amendments included in this act are intended to reflect these findings and maximize the unique potential of this legislation to simultaneously serve the goals of compassionate care, fiscal responsibility, and public safety.

PRIOR LEGISLATIVE HISTORY: 2011-12: S.4881-B - referred to Mental Health/Developmental Disabilities

FISCAL IMPLICATIONS: To be determined. Cost-savings for the state and local governments are anticipated following implementation, due to reduced instances of hospitalizations and incarcerations that would result.

EFFECTIVE DATE:This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 2225 2013-2014 Regular Sessions IN SENATE January 14, 2013 ___________
Introduced by Sens. YOUNG, ADAMS, ADDABBO, AVELLA, BALL, BONACIC, BOYLE, DeFRANCISCO, FARLEY, GALLIVAN, GOLDEN, GRIFFO, HASSELL-THOMPSON, LANZA, LARKIN, LIBOUS, LITTLE, MARCELLINO, MARCHIONE, MARTINS, MAZIARZ, NOZZOLIO, RITCHIE, SEWARD, VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Developmental 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 Kendra's Law, in relation to making the provisions thereof permanent THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph 2 of subdivision (f) of section 7.17 of the mental hygiene law, as amended by chapter 158 of the laws of 2005, is amended to read as follows: (2) The oversight and monitoring role of the program coordinator of the assisted outpatient treatment program shall include each of the following: (i) that each assisted outpatient receives the treatment provided for in the court order issued pursuant to section 9.60 of this [chapter] TITLE; (ii) that existing services located in the assisted outpatient's community are utilized whenever practicable; (iii) that a case manager or assertive community treatment team is designated for each assisted outpatient; (iv) that a mechanism exists for such case manager, or assertive community treatment team, to regularly report the assisted outpatient's compliance, or lack of compliance with treatment, to the director of the assisted outpatient treatment program; (v) that directors of community services establish procedures [which] THAT provide that reports of persons who may be in need of assisted
outpatient treatment are appropriately investigated in a timely manner; [and] (vi) that assisted outpatient treatment services are delivered in a timely manner[.]; (VII) THAT, PRIOR TO THE EXPIRATION OF ASSISTED OUTPATIENT TREATMENT ORDERS, THE CLINICAL NEEDS OF ASSISTED OUTPATIENTS ARE ADEQUATELY REVIEWED IN DETERMINING THE NEED TO PETITION FOR CONTINUED ASSISTED OUTPATIENT TREATMENT PURSUANT TO SUBDIVISION (M) OF SECTION 9.60 OF THIS TITLE; (VIII) THAT THE APPROPRIATE DIRECTOR IS DETERMINED FOR EACH ASSISTED OUTPATIENT, PURSUANT TO SUBDIVISIONS (K) AND (L) OF SECTION 9.60 OF THIS TITLE; AND (IX) THAT THE OFFICE FULFILLS ITS DUTIES PURSUANT TO SUBDIVISION (T) OF SECTION 9.60 OF THIS TITLE TO MEET LOCAL NEEDS FOR TRAINING OF JUDGES AND COURT PERSONNEL. S 2. Subdivision (f) of section 7.17 of the mental hygiene law is amended by adding a new paragraph 5 to read as follows: (5) THE COMMISSIONER SHALL DEVELOP AN EDUCATIONAL PAMPHLET ON THE PROCESS OF PETITIONING FOR ASSISTED OUTPATIENT TREATMENT FOR DISSEM- INATION TO INDIVIDUALS SEEKING TO SUBMIT REPORTS OF PERSONS WHO MAY BE IN NEED OF ASSISTED OUTPATIENT TREATMENT, AND INDIVIDUALS SEEKING TO FILE A PETITION PURSUANT TO SUBPARAGRAPH (I) OR (II) OF PARAGRAPH ONE OF SUBDIVISION (F) OF SECTION 9.60 OF THIS TITLE. SUCH PAMPHLET SHALL SET FORTH, IN PLAIN LANGUAGE: THE CRITERIA FOR ASSISTED OUTPATIENT TREAT- MENT, RESOURCES AVAILABLE TO SUCH INDIVIDUALS, THE RESPONSIBILITIES OF PROGRAM COORDINATORS AND DIRECTORS OF COMMUNITY SERVICES, A SUMMARY OF CURRENT LAW, THE PROCESS FOR PETITIONING FOR CONTINUED ASSISTED OUTPA- TIENT TREATMENT, AND OTHER SUCH INFORMATION THE COMMISSIONER DETERMINES TO BE PERTINENT. S 3. Subdivision (b) of section 9.47 of the mental hygiene law, as amended by chapter 158 of the laws of 2005, is amended to read as follows: (b) All directors of community services shall be responsible for: (1) receiving reports of persons who may be in need of assisted outpa- tient treatment PURSUANT TO SECTION 9.60 OF THIS ARTICLE and documenting the receipt date of such reports; (2) conducting timely investigations of such reports RECEIVED PURSUANT TO PARAGRAPH ONE OF THIS SUBDIVISION and providing written notice upon the completion of investigations to reporting persons and program coor- dinators, appointed by the commissioner [of mental health] pursuant to subdivision (f) of section 7.17 of this title, and documenting the initiation and completion dates of such investigations and the disposi- tions; (3) filing of petitions for assisted outpatient treatment pursuant to [paragraph] SUBPARAGRAPH (vii) of PARAGRAPH ONE OF subdivision [(e)] (F) of section 9.60 of this article, and documenting the petition filing [date] DATES and the [date] DATES of the court [order] ORDERS; (4) coordinating the timely delivery of court ordered services with program coordinators and documenting the date assisted outpatients begin to receive the services mandated in the court order; [and] (5) NOTIFYING PROGRAM COORDINATORS WHEN ASSISTED OUTPATIENTS CANNOT BE LOCATED AFTER REASONABLE EFFORTS OR ARE BELIEVED TO HAVE TAKEN RESIDENCE OUTSIDE OF THE LOCAL GOVERNMENTAL UNIT SERVED; AND (6) reporting on a quarterly basis to program coordinators the infor- mation collected pursuant to this subdivision.
S 4. Paragraphs (viii) and (ix) of subdivision (b) of section 9.48 of the mental hygiene law are renumbered paragraphs (ix) and (x) and a new paragraph (viii) is added to read as follows: (VIII) AN ACCOUNT OF ANY COURT ORDER EXPIRATION, INCLUDING BUT NOT LIMITED TO THE DIRECTOR'S DETERMINATION AS TO WHETHER TO PETITION FOR CONTINUED ASSISTED OUTPATIENT TREATMENT, PURSUANT TO SECTION 9.60 OF THIS ARTICLE, THE BASIS FOR SUCH DETERMINATION, AND THE DISPOSITION OF ANY SUCH PETITION; S 5. Section 9.60 of the mental hygiene law, as amended by chapter 158 of the laws of 2005, paragraph 1 of subdivision (a) as amended by section 1 of part E of chapter 111 of the laws of 2010, paragraph 5 of subdivision (c) as amended by chapter 137 of the laws of 2005, is amended to read as follows: S 9.60 Assisted outpatient treatment. (a) Definitions. For purposes of this section, the following defi- nitions shall apply: (1) "assisted outpatient treatment" shall mean categories of outpa- tient services [which] THAT have been ordered by the court pursuant to this section. Such treatment shall include case management services or assertive community treatment team services to provide care coordi- nation, and may also include any of the following categories of services: medication SUPPORT; MEDICATION EDUCATION OR SYMPTOM MANAGEMENT EDUCATION; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; APPOINTMENT OF A REPRESENTATIVE PAYEE OR OTHER FINANCIAL MANAGEMENT SERVICES, SUBJECT TO FINAL APPROVAL OF THE SOCIAL SECURITY ADMINISTRATION, WHERE APPLICABLE; alcohol or substance abuse treatment and counseling and periodic OR RANDOM tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse; supervision of living arrangements; and any other services within a local services plan developed pursuant to article forty-one of this chapter, CLINICAL OR NON-CLINICAL, prescribed to treat the person's mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in [suicide] SERIOUS PHYSICAL HARM TO ANY PERSON or the need for hospitalization. (2) "director" shall mean the director of community services of a local governmental unit, or the director of a hospital licensed or oper- ated by the office of mental health which operates, directs and super- vises an assisted outpatient treatment program. (3) "director of community services" and "local governmental unit" shall have the same meanings as provided in article forty-one of this chapter. (4) "assisted outpatient treatment program" shall mean a system to arrange for and coordinate the provision of assisted outpatient treat- ment, to monitor treatment compliance by assisted outpatients, to evalu- ate the condition or needs of assisted outpatients, to take appropriate steps to address the needs of such individuals, and to ensure compliance with court orders. (5) "assisted outpatient" shall mean the person under a court order to receive assisted outpatient treatment. (6) "subject of the petition" or "subject" shall mean the person who is alleged in a petition, filed pursuant to the provisions of this section, to meet the criteria for assisted outpatient treatment.
(7) "correctional facility" and "local correctional facility" shall have the same meanings as provided in section two of the correction law. (8) "health care proxy" and "health care agent" shall have the same meanings as provided in article twenty-nine-C of the public health law. (9) "program coordinator" shall mean an individual appointed by the commissioner [of mental health], pursuant to subdivision (f) of section 7.17 of this chapter, who is responsible for the oversight and monitor- ing of assisted outpatient treatment programs. (b) Programs. The director of community services of each local govern- mental unit shall operate, direct and supervise an assisted outpatient treatment program. The director of a hospital licensed or operated by the office [of mental health] may operate, direct and supervise an assisted outpatient treatment program, upon approval by the commission- er. Directors of community services shall be permitted to satisfy the provisions of this subdivision through the operation of joint assisted outpatient treatment programs. Nothing in this subdivision shall be interpreted to preclude the combination or coordination of efforts between and among local governmental units and hospitals in providing and coordinating assisted outpatient treatment. (c) Criteria. A person may be ordered to receive assisted outpatient treatment if the court finds that such person: (1) is eighteen years of age or older; and (2) is suffering from a mental illness; and (3) is unlikely to survive safely in the community without super- vision, based on a clinical determination; and (4) has a history of lack of compliance with treatment for mental illness that has: (i) [prior to the filing of the petition,] at least twice within the [last] thirty-six months PRIOR TO THE FILING OF THE PETITION been a significant factor in necessitating hospitalization in a hospital, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility[, not including]; PROVIDED THAT SUCH THIRTY-SIX MONTH PERIOD SHALL BE EXTENDED BY THE LENGTH OF any current period[, or period ending] OF HOSPITALIZATION OR INCARCERATION, AND ANY SUCH PERIOD THAT ENDED within the last six months[, during which the person was or is hospitalized or incarcerat- ed]; or (ii) WITHIN FORTY-EIGHT MONTHS prior to the filing of the petition, resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others [within the last forty-eight months, not including]; PROVIDED THAT SUCH FORTY-EIGHT MONTH PERIOD SHALL BE EXTENDED BY THE LENGTH OF any current period[, or period ending] OF HOSPITALIZATION OR INCARCERA- TION, AND ANY SUCH PERIOD THAT ENDED within the last six months[, in which the person was or is hospitalized or incarcerated]; and (5) is, as a result of his or her mental illness, unlikely to volun- tarily participate in outpatient treatment that would enable him or her to live safely in the community; and (6) in view of his or her treatment history and current behavior, is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others as defined in section 9.01 of this article; and (7) is likely to benefit from assisted outpatient treatment. (d) Health care proxy. Nothing in this section shall preclude a person with a health care proxy from being subject to a petition pursuant to
this chapter and consistent with article twenty-nine-C of the public health law. (e) INVESTIGATION OF REPORTS. THE COMMISSIONER SHALL PROMULGATE REGU- LATIONS ESTABLISHING A PROCEDURE TO ENSURE THAT REPORTS OF A PERSON WHO MAY BE IN NEED OF ASSISTED OUTPATIENT TREATMENT, INCLUDING THOSE RECEIVED FROM FAMILY AND COMMUNITY MEMBERS OF SUCH PERSON, ARE INVESTI- GATED IN A TIMELY MANNER AND, WHERE APPROPRIATE, RESULT IN THE FILING OF PETITIONS FOR ASSISTED OUTPATIENT TREATMENT. (F) Petition to the court. (1) A petition for an order authorizing assisted outpatient treatment may be filed in the supreme or county court in the county in which the subject of the petition is present or reasonably believed to be present. Such petition may be initiated only by the following persons: (i) any person eighteen years of age or older with whom the subject of the petition resides; or (ii) the parent, spouse, sibling eighteen years of age or older, or child eighteen years of age or older of the subject of the petition; or (iii) the director of a hospital in which the subject of the petition is hospitalized; or (iv) the director of any public or charitable organization, agency or home providing mental health services to the subject of the petition or in whose institution the subject of the petition resides; or (v) a qualified psychiatrist who is either supervising the treatment of or treating the subject of the petition for a mental illness; or (vi) a psychologist, licensed pursuant to article one hundred fifty- three of the education law, or a social worker, licensed pursuant to article one hundred fifty-four of the education law, who is treating the subject of the petition for a mental illness; or (vii) the director of community services, or his or her designee, or the social services official, as defined in the social services law, of the city or county in which the subject of the petition is present or reasonably believed to be present; or (viii) a parole officer or probation officer assigned to supervise the subject of the petition[.]; OR (IX) THE DIRECTOR OF THE HOSPITAL OR THE SUPERINTENDENT OF A CORREC- TIONAL FACILITY IN WHICH THE SUBJECT OF THE PETITION IS IMPRISONED, PURSUANT TO SECTION FOUR HUNDRED FOUR OF THE CORRECTION LAW. (2) THE COMMISSIONER SHALL PROMULGATE REGULATIONS PURSUANT TO WHICH PERSONS INITIATING A PETITION, PURSUANT TO SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH ONE OF THIS SUBDIVISION, MAY RECEIVE ASSISTANCE IN FILING SUCH PETITIONS, WHERE APPROPRIATE, AS DETERMINED PURSUANT TO SUBDIVISION (E) OF THIS SECTION. (3) The petition shall state: (i) each of the criteria for assisted outpatient treatment as set forth in subdivision (c) of this section; (ii) facts which support the petitioner's belief that the subject of the petition meets each criterion, provided that the hearing on the petition need not be limited to the stated facts; and (iii) that the subject of the petition is present, or is reasonably believed to be present, within the county where such petition is filed. [(3)] (4) The petition shall be accompanied by an affirmation or affi- davit of a physician, who shall not be the petitioner, stating THAT SUCH PHYSICIAN IS WILLING AND ABLE TO TESTIFY AT THE HEARING ON THE PETITION AND THAT either [that]: (i) such physician has personally examined the subject of the petition no more than ten days prior to the submission of the petition[,] AND
recommends assisted outpatient treatment for the subject of the peti- tion[, and is willing and able to testify at the hearing on the peti- tion]; or (ii) no more than ten days prior to the filing of the petition, such physician or his or her designee has made appropriate attempts but has not been successful in eliciting the cooperation of the subject of the petition to submit to an examination, such physician has reason to suspect that the subject of the petition meets the criteria for assisted outpatient treatment, and such physician is willing and able to examine the subject of the petition [and testify at the hearing on the petition] PRIOR TO PROVIDING TESTIMONY. [(4)] (5) In counties with a population of less than seventy-five thousand, the affirmation or affidavit required by paragraph [three] FOUR of this subdivision may be made by a physician who is an employee of the office. The office is authorized AND DIRECTED to make available, at no cost to the county, a qualified physician for the purpose of making such affirmation or affidavit consistent with the provisions of such paragraph. [(f)] (G) Service. The petitioner shall cause written notice of the petition to be given to the subject of the petition and a copy thereof to be given personally or by mail to the persons listed in section 9.29 of this article, the mental hygiene legal service, the health care agent if any such agent is known to the petitioner, the appropriate program coordinator, and the appropriate director of community services, if such director is not the petitioner. [(g)] (H) Right to counsel. The subject of the petition shall have the right to be represented by the mental hygiene legal service, or private- ly financed counsel, at all stages of a proceeding commenced under this section. [(h)] (I) Hearing. (1) Upon receipt of the petition, the court shall fix the date for a hearing. Such date shall be no later than three days from the date such petition is received by the court, excluding Satur- days, Sundays and holidays. Adjournments shall be permitted only for good cause shown. In granting adjournments, the court shall consider the need for further examination by a physician or the potential need to provide assisted outpatient treatment expeditiously. The court shall cause the subject of the petition, any other person receiving notice pursuant to subdivision [(f)] (G) of this section, the petitioner, the physician whose affirmation or affidavit accompanied the petition, and such other persons as the court may determine to be advised of such date. Upon such date, or upon such other date to which the proceeding may be adjourned, the court shall hear testimony and, if it be deemed advisable and the subject of the petition is available, examine the subject of the petition in or out of court. If the subject of the peti- tion does not appear at the hearing, and appropriate attempts to elicit the attendance of the subject have failed, the court may conduct the hearing in the subject's absence. In such case, the court shall set forth the factual basis for conducting the hearing without the presence of the subject of the petition. (2) The court shall not order assisted outpatient treatment unless an examining physician, who recommends assisted outpatient treatment and has personally examined the subject of the petition no more than ten days before the filing of the petition, testifies in person at the hear- ing. Such physician shall state the facts and clinical determinations which support the allegation that the subject of the petition meets each of the criteria for assisted outpatient treatment; PROVIDED THAT THE
PARTIES MAY STIPULATE, UPON MUTUAL CONSENT, THAT SUCH PHYSICIAN NEED NOT TESTIFY. (3) If the subject of the petition has refused to be examined by a physician, the court may request the subject to consent to an examina- tion by a physician appointed by the court. If the subject of the peti- tion does not consent and the court finds reasonable cause to believe that the allegations in the petition are true, the court may order peace officers, acting pursuant to their special duties, or police officers who are members of an authorized police department or force, or of a sheriff's department to take the subject of the petition into custody and transport him or her to a hospital for examination by a physician. Retention of the subject of the petition under such order shall not exceed twenty-four hours. The examination of the subject of the petition may be performed by the physician whose affirmation or affidavit accom- panied the petition pursuant to paragraph three of subdivision [(e)] (F) of this section, if such physician is privileged by such hospital or otherwise authorized by such hospital to do so. If such examination is performed by another physician, the examining physician may consult with the physician whose affirmation or affidavit accompanied the petition as to whether the subject meets the criteria for assisted outpatient treat- ment. (4) A physician who testifies pursuant to paragraph two of this subdi- vision shall state: (i) the facts [which] AND CLINICAL DETERMINATIONS THAT support the allegation that the subject meets each of the criteria for assisted outpatient treatment, (ii) that the treatment is the least restrictive alternative, (iii) the recommended assisted outpatient treatment, and (iv) the rationale for the recommended assisted outpa- tient treatment. If the recommended assisted outpatient treatment includes medication, such physician's testimony shall describe the types or classes of medication which should be authorized, shall describe the beneficial and detrimental physical and mental effects of such medica- tion, and shall recommend whether such medication should be self-admin- istered or administered by authorized personnel. (5) The subject of the petition shall be afforded an opportunity to present evidence, to call witnesses on his or her behalf, and to cross- examine adverse witnesses. [(i)] (J) Written treatment plan. (1) The court shall not order assisted outpatient treatment unless a physician appointed by the appro- priate director, in consultation with such director, develops and provides to the court a proposed written treatment plan. The written treatment plan shall include case management services or assertive community treatment team services to provide care coordination. The written treatment plan also shall include all categories of services, as set forth in paragraph one of subdivision (a) of this section, which such physician recommends that the subject of the petition receive. All service providers shall be notified regarding their inclusion in the written treatment plan. If the written treatment plan includes medica- tion, it shall state whether such medication should be self-administered or administered by authorized personnel, and shall specify type and dosage range of medication most likely to provide maximum benefit for the subject. If the written treatment plan includes alcohol or substance abuse counseling and treatment, such plan may include a provision requiring relevant testing for either alcohol or illegal substances provided the physician's clinical basis for recommending such plan provides sufficient facts for the court to find (i) that such person has a history of alcohol or substance abuse that is clinically related to
the mental illness; and (ii) that such testing is necessary to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others. If a director is the petitioner, the written treatment plan shall be provided to the court no later than the date of the hearing on the petition. If a person other than a director is the petitioner, such plan shall be provided to the court no later than the date set by the court pursuant to paragraph three of subdivision [(j)] (K) of this section. (2) The physician appointed to develop the written treatment plan shall provide the following persons with an opportunity to actively participate in the development of such plan: the subject of the peti- tion; the treating physician, if any; and upon the request of the subject of the petition, an individual significant to the subject including any relative, close friend or individual otherwise concerned with the welfare of the subject. THE APPOINTED PHYSICIAN SHALL MAKE A REASONABLE EFFORT TO GATHER RELEVANT INFORMATION FOR THE DEVELOPMENT OF THE TREATMENT PLAN FROM THE SUBJECT OF THE PETITION'S FAMILY MEMBER OR MEMBERS, OR HIS OR HER SIGNIFICANT OTHER. If the subject of the petition has executed a health care proxy, the appointed physician shall consider any directions included in such proxy in developing the written treat- ment plan. (3) The court shall not order assisted outpatient treatment unless a physician appearing on behalf of a director testifies to explain the written proposed treatment plan; PROVIDED THAT THE PARTIES MAY STIPU- LATE, UPON MUTUAL CONSENT, THAT SUCH PHYSICIAN NEED NOT TESTIFY. Such physician shall state the categories of assisted outpatient treatment recommended, the rationale for each such category, facts which establish that such treatment is the least restrictive alternative, and, if the recommended assisted outpatient treatment plan includes medication, such physician shall state the types or classes of medication recommended, the beneficial and detrimental physical and mental effects of such medi- cation, and whether such medication should be self-administered or administered by an authorized professional. If the subject of the peti- tion has executed a health care proxy, such physician shall state the consideration given to any directions included in such proxy in develop- ing the written treatment plan. If a director is the petitioner, testi- mony pursuant to this paragraph shall be given at the hearing on the petition. If a person other than a director is the petitioner, such testimony shall be given on the date set by the court pursuant to para- graph three of subdivision [(j)] (K) of this section. [(j)] (K) Disposition. (1) If after hearing all relevant evidence, the court does not find by clear and convincing evidence that the subject of the petition meets the criteria for assisted outpatient treatment, the court shall dismiss the petition. (2) If after hearing all relevant evidence, the court finds by clear and convincing evidence that the subject of the petition meets the criteria for assisted outpatient treatment, and there is no appropriate and feasible less restrictive alternative, the court may order the subject to receive assisted outpatient treatment for an initial period not to exceed [six months] ONE YEAR. In fashioning the order, the court shall specifically make findings by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the subject. The order shall state an assisted outpa- tient treatment plan, which shall include all categories of assisted outpatient treatment, as set forth in paragraph one of subdivision (a) of this section, which the assisted outpatient is to receive, but shall
not include any such category that has not been recommended in [both] the proposed written treatment plan and [the] IN ANY testimony provided to the court pursuant to subdivision [(i)] (J) of this section. (3) If after hearing all relevant evidence presented by a petitioner who is not a director, the court finds by clear and convincing evidence that the subject of the petition meets the criteria for assisted outpa- tient treatment, and the court has yet to be provided with a written proposed treatment plan and testimony pursuant to subdivision [(i)] (J) of this section, the court shall order the appropriate director to provide the court with such plan and testimony no later than the third day, excluding Saturdays, Sundays and holidays, immediately following the date of such order; PROVIDED THAT THE PARTIES MAY STIPULATE UPON MUTUAL CONSENT THAT SUCH TESTIMONY NEED NOT BE PROVIDED. Upon receiving such plan and ANY REQUIRED testimony, the court may order assisted outpatient treatment as provided in paragraph two of this subdivision. (4) A court may order the patient to self-administer psychotropic drugs or accept the administration of such drugs by authorized personnel as part of an assisted outpatient treatment program. Such order may specify the type and dosage range of such psychotropic drugs and such order shall be effective for the duration of such assisted outpatient treatment. (5) If the petitioner is the director of a hospital that operates an assisted outpatient treatment program, the court order shall direct the hospital director to provide or arrange for all categories of assisted outpatient treatment for the assisted outpatient throughout the period of the order. For all other persons, the order shall require the direc- tor of community services of the appropriate local governmental unit to provide or arrange for all categories of assisted outpatient treatment for the assisted outpatient throughout the period of the order. ORDERS ISSUED ON OR AFTER THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND THIRTEEN THAT AMENDED THIS SECTION SHALL REQUIRE THE APPROPRI- ATE DIRECTOR "AS DETERMINED BY THE PROGRAM COORDINATOR" TO PROVIDE OR ARRANGE FOR ALL CATEGORIES OF ASSISTED OUTPATIENT TREATMENT FOR THE ASSISTED OUTPATIENT THROUGHOUT THE PERIOD OF THE ORDER. (6) The director shall cause a copy of any court order issued pursuant to this section to be served personally, or by mail, facsimile or elec- tronic means, upon the assisted outpatient, the mental hygiene legal service or anyone acting on the assisted outpatient's behalf, the original petitioner, identified service providers, and all others enti- tled to notice under subdivision [(f)] (G) of this section. [(k)] (L) RELOCATION OF ASSISTED OUTPATIENTS. THE COMMISSIONER SHALL PROMULGATE REGULATIONS REQUIRING THAT, DURING THE PERIOD OF THE ORDER, AN ASSISTED OUTPATIENT AND ANY OTHER APPROPRIATE PERSONS SHALL NOTIFY THE PROGRAM COORDINATOR WITHIN A REASONABLE TIME PRIOR TO SUCH ASSISTED OUTPATIENT RELOCATING WITHIN THE STATE OF NEW YORK TO AN AREA NOT SERVED BY THE DIRECTOR WHO HAS BEEN DIRECTED TO PROVIDE OR ARRANGE FOR THE ASSISTED OUTPATIENT TREATMENT. UPON RECEIVING NOTIFICATION OF SUCH RELO- CATION, THE PROGRAM COORDINATOR SHALL REDETERMINE WHO THE APPROPRIATE DIRECTOR SHALL BE AND CAUSE A COPY OF THE COURT ORDER AND TREATMENT PLAN TO BE TRANSMITTED TO SUCH DIRECTOR. (M) Petition for [additional periods of] CONTINUED treatment. (1) WITHIN THIRTY DAYS PRIOR TO THE EXPIRATION OF AN ORDER PURSUANT TO THIS SECTION, THE APPROPRIATE DIRECTOR SHALL REVIEW WHETHER THE ASSISTED OUTPATIENT CONTINUES TO MEET THE CRITERIA FOR ASSISTED OUTPATIENT TREAT- MENT. UPON DETERMINING THAT ONE OR MORE OF SUCH CRITERIA ARE NO LONGER MET, SUCH DIRECTOR SHALL NOTIFY THE PROGRAM COORDINATOR IN WRITING THAT
A PETITION FOR CONTINUED ASSISTED OUTPATIENT TREATMENT IS NOT WARRANTED. UPON DETERMINING THAT SUCH CRITERIA CONTINUE TO BE MET, HE OR SHE SHALL PETITION THE COURT TO ORDER CONTINUED ASSISTED OUTPATIENT TREATMENT FOR A PERIOD NOT TO EXCEED ONE YEAR FROM THE EXPIRATION DATE OF THE CURRENT ORDER. IF THE COURT'S DISPOSITION OF SUCH PETITION DOES NOT OCCUR PRIOR TO THE EXPIRATION DATE OF THE CURRENT ORDER, THE CURRENT ORDER SHALL REMAIN IN EFFECT UNTIL SUCH DISPOSITION. THE PROCEDURES FOR OBTAINING ANY ORDER PURSUANT TO THIS SUBDIVISION SHALL BE IN ACCORDANCE WITH THE PROVISIONS OF THE FOREGOING SUBDIVISION OF THIS SECTION; PROVIDED THAT THE TIME RESTRICTIONS INCLUDED IN PARAGRAPH FOUR OF SUBDIVISION (C) OF THIS SECTION SHALL NOT BE APPLICABLE. THE NOTICE PROVISIONS SET FORTH IN PARAGRAPH SIX OF SUBDIVISION (K) OF THIS SECTION SHALL BE APPLICABLE. ANY COURT ORDER REQUIRING PERIODIC BLOOD TESTS OR URINALYSIS FOR THE PRESENCE OF ALCOHOL OR ILLEGAL DRUGS SHALL BE SUBJECT TO REVIEW AFTER SIX MONTHS BY THE PHYSICIAN WHO DEVELOPED THE WRITTEN TREATMENT PLAN OR ANOTHER PHYSICIAN DESIGNATED BY THE DIRECTOR, AND SUCH PHYSICIAN SHALL BE AUTHORIZED TO TERMINATE SUCH BLOOD TESTS OR URINALYSIS WITHOUT FURTHER ACTION BY THE COURT. (2) Within thirty days prior to the expiration of an order of assisted outpatient treatment, [the appropriate director or] the current peti- tioner, if the current petition was filed pursuant to subparagraph (i) or (ii) of paragraph one of subdivision [(e)] (F) of this section, and the current petitioner retains his or her original status pursuant to the applicable subparagraph, may petition the court to order continued assisted outpatient treatment for a period not to exceed one year from the expiration date of the current order. If the court's disposition of such petition does not occur prior to the expiration date of the current order, the current order shall remain in effect until such disposition. The procedures for obtaining any order pursuant to this subdivision shall be in accordance with the provisions of the foregoing subdivisions of this section; provided that the time restrictions included in para- graph four of subdivision (c) of this section shall not be applicable. The notice provisions set forth in paragraph six of subdivision [(j)] (K) of this section shall be applicable. Any court order requiring periodic blood tests or urinalysis for the presence of alcohol or ille- gal drugs shall be subject to review after six months by the physician who developed the written treatment plan or another physician designated by the director, and such physician shall be authorized to terminate such blood tests or urinalysis without further action by the court. (3) IF NEITHER THE APPROPRIATE DIRECTOR NOR THE CURRENT PETITIONER PETITION FOR CONTINUED ASSISTED OUTPATIENT TREATMENT PURSUANT TO THIS PARAGRAPH AND THE ORDER OF THE COURT EXPIRES, ANY OTHER PERSON AUTHOR- IZED TO PETITION PURSUANT TO PARAGRAPH ONE OF SUBDIVISION (F) OF THIS SECTION MAY BRING A NEW PETITION FOR ASSISTED OUTPATIENT TREATMENT. IF SUCH NEW PETITION IS FILED LESS THAN SIXTY DAYS AFTER THE EXPIRATION OF SUCH ORDER, THE TIME RESTRICTIONS PROVIDED IN PARAGRAPH FOUR OF SUBDIVI- SION (C) OF THIS SECTION SHALL NOT BE APPLICABLE TO THE NEW PETITION. (4) IF, THIRTY DAYS PRIOR TO THE EXPIRATION OF AN ORDER, THE ASSISTED OUTPATIENT IS DEEMED BY THE APPROPRIATE DIRECTOR TO BE MISSING AND THEREBY UNAVAILABLE FOR EVALUATION AS TO WHETHER HE OR SHE CONTINUES TO MEET THE CRITERIA FOR ASSISTED OUTPATIENT TREATMENT, SUCH DIRECTOR SHALL PETITION THE COURT TO EXTEND THE TERM OF THE CURRENT ORDER UNTIL SIXTY DAYS AFTER SUCH TIME AS THE ASSISTED OUTPATIENT IS LOCATED. IF THE COURT GRANTS THE EXTENSION, THE DIRECTOR SHALL CONTINUE REASONABLE EFFORTS TO LOCATE THE ASSISTED OUTPATIENT. UPON LOCATION OF THE ASSISTED OUTPA- TIENT, THE DIRECTOR SHALL REVIEW WHETHER THE ASSISTED OUTPATIENT CONTIN-
UES TO MEET THE CRITERIA FOR ASSISTED OUTPATIENT TREATMENT, PURSUANT TO PARAGRAPH TWO OF THIS SUBDIVISION. [(l)] (N) Petition for an order to stay, vacate or modify. (1) In addition to any other right or remedy available by law with respect to the order for assisted outpatient treatment, the assisted outpatient, the mental hygiene legal service, or anyone acting on the assisted outpatient's behalf may petition the court on notice to the director, the original petitioner, and all others entitled to notice under subdi- vision [(f)] (G) of this section to stay, vacate or modify the order. (2) The appropriate director shall petition the court for approval before instituting a proposed material change in the assisted outpatient treatment plan, unless such change is authorized by the order of the court. Such petition shall be filed on notice to all parties entitled to notice under subdivision [(f)] (G) of this section. Not later than five days after receiving such petition, excluding Saturdays, Sundays and holidays, the court shall hold a hearing on the petition; provided that if the assisted outpatient informs the court that he or she agrees to the proposed material change, the court may approve such change without a hearing. Non-material changes may be instituted by the director with- out court approval. For the purposes of this paragraph, a material change is an addition or deletion of a category of services to or from a current assisted outpatient treatment plan, or any deviation without the assisted outpatient's consent from the terms of a current order relating to the administration of psychotropic drugs. [(m)] (O) Appeals. Review of an order issued pursuant to this section shall be had in like manner as specified in section 9.35 of this article; PROVIDED THAT NOTICE SHALL BE PROVIDED TO ALL PARTIES ENTITLED TO NOTICE UNDER SUBDIVISION (G) OF THIS SECTION. [(n)] (P) Failure to comply with assisted outpatient treatment. Where in the clinical judgment of a physician, (i) the assisted outpatient, has failed or refused to comply with the assisted outpatient treatment, (ii) efforts were made to solicit compliance, and (iii) such assisted outpatient may be in need of involuntary admission to a hospital pursu- ant to section 9.27 of this article or immediate observation, care and treatment pursuant to section 9.39 or 9.40 of this article, such physi- cian may request the director of community services, the director's designee, or any physician designated by the director of community services pursuant to section 9.37 of this article, to direct the removal of such assisted outpatient to an appropriate hospital for an examina- tion to determine if such person has a mental illness for which HE OR SHE IS IN NEED OF hospitalization is necessary pursuant to section 9.27, 9.39 or 9.40 of this article[. Furthermore, if such assisted outpatient refuses to take medications as required by the court order, or he or she refuses to take, or fails a blood test, urinalysis, or alcohol or drug test as required by the court order, such physician may consider such refusal or failure when determining whether]; PROVIDED THAT IF, AFTER EFFORTS TO SOLICIT COMPLIANCE, SUCH PHYSICIAN DETERMINES THAT THE ASSISTED OUTPATIENT'S FAILURE TO COMPLY WITH THE ASSISTED OUTPATIENT TREATMENT INCLUDES A SUBSTANTIAL FAILURE TO TAKE MEDICATION, PASS OR SUBMIT TO BLOOD TESTING OR URINALYSIS, OR RECEIVE TREATMENT FOR ALCOHOL OR SUBSTANCE ABUSE, SUCH PHYSICIAN MAY PRESUME THAT the assisted outpa- tient is in need of an examination to determine whether he or she has a mental illness for which hospitalization is necessary. Upon the request of such physician, the director, the director's designee, or any physi- cian designated pursuant to section 9.37 of this article, may direct peace officers, acting pursuant to their special duties, or police offi-
cers who are members of an authorized police department or force or of a sheriff's department to take the assisted outpatient into custody and transport him or her to the hospital operating the assisted outpatient treatment program or to any hospital authorized by the director of community services to receive such persons. Such law enforcement offi- cials shall carry out such directive. Upon the request of such physi- cian, the director, the director's designee, or any physician designated pursuant to section 9.37 of this article, an ambulance service, as defined by subdivision two of section three thousand one of the public health law, or an approved mobile crisis outreach team as defined in section 9.58 of this article shall be authorized to take into custody and transport any such person to the hospital operating the assisted outpatient treatment program, or to any other hospital authorized by the director of community services to receive such persons. Any director of community services, or designee, shall be authorized to direct the removal of an assisted outpatient who is present in his or her county to an appropriate hospital, in accordance with the provisions of this subdivision, based upon a determination of the appropriate director of community services directing the removal of such assisted outpatient pursuant to this subdivision. Such person may be retained for observa- tion, care and treatment and further examination in the hospital for up to seventy-two hours to permit a physician to determine whether such person has a mental illness and is in need of involuntary care and treatment in a hospital pursuant to the provisions of this article. Any continued involuntary retention OF THE ASSISTED OUTPATIENT in such hospital beyond the initial seventy-two hour period shall be in accord- ance with the provisions of this article relating to the involuntary admission and retention of a person. If at any time during the seventy- two hour period the person is determined not to meet the involuntary admission and retention provisions of this article, and does not agree to stay in the hospital as a voluntary or informal patient, he or she must be released. Failure to comply with an order of assisted outpatient treatment shall not be grounds for involuntary civil commitment or a finding of contempt of court. [(o)] (Q) Effect of determination that a person is in need of assisted outpatient treatment. The determination by a court that a person is in need of assisted outpatient treatment shall not be construed as or deemed to be a determination that such person is incapacitated pursuant to article eighty-one of this chapter. [(p)] (R) False petition. A person making a false statement or provid- ing false information or false testimony in a petition or hearing under this section shall be subject to criminal prosecution pursuant to arti- cle one hundred seventy-five or article two hundred ten of the penal law. [(q)] (S) Exception. Nothing in this section shall be construed to affect the ability of the director of a hospital to receive, admit, or retain patients who otherwise meet the provisions of this article regarding receipt, retention or admission. [(r)] (T) Education and training. (1) The office [of mental health], in consultation with the office of court administration, shall prepare educational and training materials on the use of this section, which shall be made available to local governmental units, providers of services, judges, court personnel, law enforcement officials and the general public. (2) The office, in consultation with the office of court adminis- tration, shall establish a mental health training program for supreme
and county court judges and court personnel, AND SHALL PROVIDE SUCH TRAINING WITH SUCH FREQUENCY AND IN SUCH LOCATIONS AS MAY BE APPROPRIATE TO MEET STATEWIDE NEEDS. Such training shall focus on the use of this section and generally address issues relating to mental illness and mental health treatment. S 6. Section 29.15 of the mental hygiene law is amended by adding a new subdivision (o) to read as follows: (O) IF THE DIRECTOR OF A DEPARTMENT FACILITY DOES NOT PETITION FOR ASSISTED OUTPATIENT TREATMENT PURSUANT TO SECTION 9.60 OF THIS CHAPTER UPON THE DISCHARGE OF AN INPATIENT ADMITTED PURSUANT TO SECTION 9.27, 9.39 OR 9.40 OF THIS CHAPTER, OR UPON THE EXPIRATION OF A PERIOD OF CONDITIONAL RELEASE FOR SUCH INPATIENT, SUCH DIRECTOR SHALL REPORT SUCH DISCHARGE OR SUCH EXPIRATION IN WRITING TO THE DIRECTOR OF COMMUNITY SERVICES OF THE LOCAL GOVERNMENTAL UNIT IN WHICH THE INPATIENT IS EXPECTED TO RESIDE. S 7. Subdivision 1 of section 404 of the correction law, as amended by chapter 7 of the laws of 2007, is amended to read as follows: 1. Whenever an inmate committed to a hospital in the department of mental hygiene or whenever an inmate is examined in anticipation of his or her conditional release, release to parole supervision, or when his or her sentence to a term of imprisonment expires and such inmate shall continue to be mentally ill and in need of care and treatment at the time of his or her conditional release, release to parole supervision, or when his or her sentence to a term of imprisonment expires, the director of the hospital or the superintendent of a correctional facili- ty [may] SHALL, WHERE APPROPRIATE, EITHER apply for the person's admis- sion to a hospital for the care and treatment of the mentally ill in the department of mental hygiene pursuant to article nine of the mental hygiene law[,] or [alternatively] INITIATE A PETITION FOR AN ORDER AUTHORIZING ASSISTED OUTPATIENT TREATMENT, PURSUANT TO SECTION 9.60 OF THE MENTAL HYGIENE LAW, OR the commissioner may apply for the person's admission to a secure treatment facility pursuant to article ten of the mental hygiene law. S 8. Section 18 of chapter 408 of the laws of 1999, constituting Kendra's Law, as amended by chapter 139 of the laws of 2010, is amended to read as follows: S 18. This act shall take effect immediately, provided that section fifteen of this act shall take effect April 1, 2000, provided, further, that subdivision (e) of section 9.60 of the mental hygiene law as added by section six of this act shall be effective 90 days after this act shall become law[; and that this act shall expire and be deemed repealed June 30, 2015]. S 9. Severability. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, and after exhaustion of all further judicial review, the judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, para- graph, section or part thereof directly involved in the controversy. S 10. This act shall take effect immediately.

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