Creates mental health incident review panels.
TITLE OF BILL: An act to amend the mental hygiene law and the education law, in relation to creating mental health incident review panels
PURPOSE: This bill would authorize the Commissioner of the Office of Mental Health to convene panels of state and local officials to review violent incidents involving persons with mental illness
SUMMARY OF PROVISIONS: Section 1 of the bill adds a new Mental Hygiene Law § 31.37 to give the commissioner of the Office of Mental Health (OMH) the authority to establish one or more mental health incident review panels to evaluate the circumstances surrounding incidents in which a person with serious mental illness is physically injured or causes physical injury, or suffers a serious and preventable medical complication, or becomes involved in a violent criminal incident. Such panels must include state mental health and local government officials, and may include members from law enforcement agencies. To encourage candid assessments of systemic or other problems that led to the incident under review, the information obtained by the review panel will be deemed confidential. The OMH Commissioner must make an annual report to the legislature and the Governor summarizing the findings and recommendations made by the review panels.
Section 2 of the bill adds a new Mental Hygiene Law § 33.13(c) (15) to allow mental health information to be disclosed to a mental health review panel.
Section 3 of the bill amends Education Law § 6527 to provide that the reviews conducted by the mental health incident review panels will not be subject to disclosure and that the information received by the panels will be protected by the statutory quality assurance privilege.
Section 4 of the bill contains the effective date.
EXISTING LAW: A quality assurance privilege is generally recognized as an essential mechanism allowing medical facilities to address quality concerns in a confidential manner that will help them to sustain a culture of quality improvement. The New York Court of Appeals has recognized that the statutory privilege set forth in Education Law 6527, which protects quality assurance records of certain entities from disclosure in the context of Civil Procedure Law and Rules discovery provisions, "promotes the quality of care through self-review without fear of legal reprisal." Katherine F. v. New York, 94 N.Y.2d 200, 205 (1999). Under Mental Hygiene Law § 29.29, the OMH Commissioner must establish procedures for review and analysis of accidents and other injuries affecting the health and welfare of patients at a mental health facility. Such reviews and analyses are subject to the confidentiality provisions set forth in Education Law § 6527.
JUSTIFICATION: This bill, which creates a statutory scheme modeled after the child fatality reviews conducted pursuant to Social Services Law § 422-b, allows for improved State and local response to incidents that occur outside of a mental health facility in which persons with mental illness are harmed or harm others, or suffer serious and preventable medical complications, or become involved in violent criminal offenses.
First, the bill allows the OMR Commissioner to include local and state officials with varied backgrounds on review panels, which will permit more effective and widely-ranging evaluations of these incidents. Impaneling members with mental health, social services and law enforcement backgrounds will ensure that an incident review panel may consider a wide range of perspectives when: (1) identifying systemic and individual problems that may have contributed to a particular incident; and (2) recommending policy or legislative changes to prevent future occurrences and enhance public safety.
Second, the bill will ensure that incident reviews are conducted objectively, and that the panel members and other persons with whom the panel members consult may frankly and freely discuss and analyze any errors or Shortcomings in the mental health and/or criminal justice system that may have led to the incident's Occurrence. These assurances of confidentiality will lead to both improved quality of care for persons with mental illness and enhanced protection for the public.
LEGISLATIVE HISTORY: 2009/10: S.4901 - Referred to Mental Health and Development Disabilities; A.6835. S.8710 Passed Senate in 2008
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: 30 days after it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 3018 2011-2012 Regular Sessions IN SENATE 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: Section 1. The mental hygiene law is amended by adding a new section 31.37 to read as follows: S 31.37 MENTAL HEALTH INCIDENT REVIEW PANELS. (A) THE COMMISSIONER IS AUTHORIZED TO ESTABLISH A MENTAL HEALTH INCI- DENT REVIEW PANEL FOR THE PURPOSES OF REVIEWING THE CIRCUMSTANCES AND EVENTS RELATED TO A SERIOUS INCIDENT INVOLVING A PERSON WITH MENTAL ILLNESS. FOR PURPOSES OF THIS SECTION, A "SERIOUS INCIDENT INVOLVING A PERSON WITH MENTAL ILLNESS" MEANS AN INCIDENT OCCURRING IN THE COMMUNITY IN WHICH A PERSON WITH A SERIOUS MENTAL ILLNESS IS PHYSICALLY INJURED OR CAUSES PHYSICAL INJURY TO ANOTHER PERSON, OR SUFFERS A SERIOUS AND PREVENTABLE MEDICAL COMPLICATION OR BECOMES INVOLVED IN A CRIMINAL INCI- DENT INVOLVING VIOLENCE. A PANEL SHALL CONDUCT A REVIEW OF SUCH SERIOUS INCIDENT IN AN ATTEMPT TO IDENTIFY PROBLEMS OR GAPS IN MENTAL HEALTH DELIVERY SYSTEMS AND TO MAKE RECOMMENDATIONS FOR CORRECTIVE ACTIONS TO IMPROVE THE PROVISION OF MENTAL HEALTH OR RELATED SERVICES, TO IMPROVE THE COORDINATION, INTEGRATION AND ACCOUNTABILITY OF CARE IN THE MENTAL HEALTH SERVICE SYSTEM, AND TO ENHANCE INDIVIDUAL AND PUBLIC SAFETY. (B) A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, REPRESENTATIVES FROM THE OFFICE OF MENTAL HEALTH AND THE LOCAL GOVERNMENTAL UNIT WHERE THE SERIOUS INCIDENT INVOLVING A PERSON WITH A MENTAL ILLNESS OCCURRED. A MENTAL HEALTH INCIDENT REVIEW PANEL MAY ALSO INCLUDE, IF DEEMED APPROPRIATE BY THE COMMISSIONER BASED ON THE NATURE OF THE SERIOUS INCIDENT BEING REVIEWED, ONE OR MORE REPRESEN- TATIVES FROM MENTAL HEALTH PROVIDERS, LOCAL DEPARTMENTS OF SOCIALEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00284-01-1 S. 3018 2
SERVICES, HUMAN SERVICES PROGRAMS, HOSPITALS, LOCAL SCHOOLS, EMERGENCY MEDICAL OR MENTAL HEALTH SERVICES, THE OFFICE OF THE COUNTY ATTORNEY, STATE OR LOCAL LAW ENFORCEMENT AGENCIES, THE OFFICE OF THE MEDICAL EXAM- INER OR THE OFFICE OF THE CORONER, OR OTHER APPROPRIATE STATE OR LOCAL OFFICIALS. (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY AND TO THE EXTENT CONSISTENT WITH FEDERAL LAW, A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL HAVE ACCESS TO THOSE CLIENT-IDENTIFIABLE MENTAL HEALTH RECORDS, AS WELL AS ALL RECORDS, DOCUMENTATION AND REPORTS RELATING TO THE INVESTIGATION OF AN INCIDENT BY A FACILITY IN ACCORDANCE WITH REGU- LATIONS OF THE COMMISSIONER, WHICH ARE NECESSARY FOR THE INVESTIGATION OF THE INCIDENT AND THE PREPARATION OF A REPORT OF THE INCIDENT, AS PROVIDED IN SUBDIVISION (E) OF THIS SECTION. A MENTAL HEALTH INCIDENT REVIEW PANEL ESTABLISHED PURSUANT TO THIS SECTION SHALL BE PROVIDED WITH ACCESS TO ALL OTHER RECORDS IN THE POSSESSION OF STATE OR LOCAL OFFI- CIALS OR AGENCIES, WITHIN TWENTY-ONE DAYS OF RECEIPT OF A REQUEST, EXCEPT THOSE RECORDS PROTECTED BY SECTION 190.25 OF THE CRIMINAL PROCE- DURE LAW. (D) MENTAL HEALTH INCIDENT REVIEW PANELS, MEMBERS OF THE REVIEW PANELS AND PERSONS WHO PRESENT INFORMATION TO A REVIEW PANEL SHALL HAVE IMMUNI- TY FROM CIVIL AND CRIMINAL LIABILITY FOR ALL REASONABLE AND GOOD FAITH ACTIONS TAKEN PURSUANT TO THIS SECTION, AND SHALL NOT BE QUESTIONED IN ANY CIVIL OR CRIMINAL PROCEEDING REGARDING ANY OPINIONS FORMED AS A RESULT OF A MEETING OF SUCH REVIEW PANEL. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT A PERSON FROM TESTIFYING AS TO INFORMATION OBTAINED INDEPENDENTLY OF A MENTAL HEALTH INCIDENT REVIEW PANEL, OR INFORMATION WHICH IS PUBLIC. (E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, ALL MEETINGS CONDUCTED, ALL REPORTS AND RECORDS MADE AND MAINTAINED AND ALL BOOKS AND PAPERS OBTAINED BY A MENTAL HEALTH INCIDENT REVIEW PANEL SHALL BE CONFIDENTIAL, AND SHALL NOT BE OPEN OR MADE AVAILABLE, EXCEPT BY COURT ORDER OR AS SET FORTH IN SUBDIVISION (G) OF THIS SECTION. EACH MENTAL HEALTH INCIDENT REVIEW PANEL SHALL DEVELOP A REPORT OF THE INCI- DENT INVESTIGATED. SUCH REPORT SHALL NOT CONTAIN ANY INDIVIDUALLY IDEN- TIFIABLE INFORMATION, AND IT SHALL BE PROVIDED TO THE OFFICE OF MENTAL HEALTH UPON COMPLETION. SUCH REPORTS MUST BE APPROVED BY THE OFFICE OF MENTAL HEALTH PRIOR TO BECOMING FINAL. (F) IF QUALITY PROBLEMS OF PARTICULAR MENTAL HEALTH PROGRAMS ARE IDEN- TIFIED BASED ON SUCH REVIEWS, THE COMMISSIONER IS AUTHORIZED, PURSUANT TO THE RELEVANT PROVISIONS OF THIS CHAPTER, TO TAKE APPROPRIATE ACTIONS REGARDING THE LICENSURE OF PARTICULAR PROVIDERS, TO REFER THE ISSUE TO OTHER RESPONSIBLE PARTIES FOR INVESTIGATION, OR TO TAKE OTHER APPROPRI- ATE ACTION. (G) IN HIS OR HER DISCRETION, THE COMMISSIONER SHALL BE AUTHORIZED TO PROVIDE THE FINAL REPORT OF A REVIEW PANEL OR PORTIONS THEREOF TO ANY INDIVIDUAL OR ENTITY FOR WHOM THE REPORT MAKES RECOMMENDATIONS FOR CORRECTIVE OR OTHER APPROPRIATE ACTIONS THAT SHOULD BE TAKEN. (H) THE COMMISSIONER SHALL SUBMIT AN ANNUAL CUMULATIVE REPORT TO THE GOVERNOR AND THE LEGISLATURE INCORPORATING THE DATA IN THE MENTAL HEALTH INCIDENT REVIEW PANEL REPORTS AND INCLUDING A SUMMARY OF THE FINDINGS AND RECOMMENDATIONS MADE BY SUCH REVIEW PANELS. THE ANNUAL CUMULATIVE REPORTS MAY THEREAFTER BE MADE AVAILABLE TO THE PUBLIC. S 2. Subdivision (c) of section 33.13 of the mental hygiene law is amended by adding a new paragraph 15 to read as follows:S. 3018 3
15. TO A MENTAL HEALTH INCIDENT REVIEW PANEL, OR MEMBERS THEREOF, ESTABLISHED BY THE COMMISSIONER PURSUANT TO SECTION 31.37 OF THIS TITLE, IN CONNECTION WITH INCIDENT REVIEWS CONDUCTED BY SUCH PANEL. S 3. Subdivision 3 of section 6527 of the education law, as amended by chapter 257 of the laws of 1987, is amended to read as follows: 3. No individual who serves as a member of (a) a committee established to administer a utilization review plan of a hospital, including a hospital as defined in article twenty-eight of the public health law or a hospital as defined in subdivision ten of section 1.03 of the mental hygiene law, or (b) a committee having the responsibility of the inves- tigation of an incident reported pursuant to section 29.29 of the mental hygiene law or the evaluation and improvement of the quality of care rendered in a hospital as defined in article twenty-eight of the public health law or a hospital as defined in subdivision ten of section 1.03 of the mental hygiene law, or (c) any medical review committee or subcommittee thereof of a local, county or state medical, dental, podia- try or optometrical society, any such society itself, a professional standards review organization or an individual when such committee, subcommittee, society, organization or individual is performing any medical or quality assurance review function including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, either described in clauses (a) and (b) of this subdivision, required by law, or involving any controversy or dispute between (i) a physician, dentist, podiatrist or optometrist or hospital administrator and a patient concerning the diagnosis, treatment or care of such patient or the fees or charges therefor or (ii) a physician, dentist, podiatrist or optometrist or hospital administrator and a provider of medical, dental, podiatric or optometrical services concerning any medical or health charges or fees of such physician, dentist, podiatrist or optometrist, or (d) a committee appointed pursuant to section twen- ty-eight hundred five-j of the public health law to participate in the medical and dental malpractice prevention program, or (e) any individual who participated in the preparation of incident reports required by the department of health pursuant to section twenty-eight hundred five-l of the public health law, or (f) a committee established to administer a utilization review plan, or a committee having the responsibility of evaluation and improvement of the quality of care rendered, in a health maintenance organization organized under article forty-four of the public health law or article forty-three of the insurance law, including a committee of an individual practice association or medical group acting pursuant to a contract with such a health maintenance organiza- tion, OR (G) A MENTAL HEALTH INCIDENT REVIEW PANEL CONVENED PURSUANT TO SECTION 31.37 OF THE MENTAL HYGIENE LAW, shall be liable in damages to any person for any action taken or recommendations made, by him OR HER within the scope of his OR HER function in such capacity provided that (a) such individual has taken action or made recommendations within the scope of his OR HER function and without malice, and (b) in the reason- able belief after reasonable investigation that the act or recommenda- tion was warranted, based upon the facts disclosed. Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program nor any report required by the department of health pursuant to section twenty-eight hundred five-l of the public health law described herein, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law OR REVIEWED PURSUANT TO SECTION 31.37 OF THE MENTALS. 3018 4
HYGIENE LAW, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law. No person in attendance at a meeting when a medical or a quality assurance review or a medical and dental malpractice prevention program or an incident reporting function described herein was performed, including the investigation of an inci- dent reported pursuant to section 29.29 of the mental hygiene law OR AN INCIDENT REVIEWED PURSUANT TO SECTION 31.37 OF THE MENTAL HYGIENE LAW, shall be required to testify as to what transpired thereat. The prohibi- tion relating to discovery of testimony shall not apply to the state- ments made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting. S 4. This act shall take effect on the thirtieth day after it shall have become a law.