Bill Text: NY A02414 | 2019-2020 | General Assembly | Introduced


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

Spectrum: Slight Partisan Bill (Democrat 25-12)

Status: (Introduced - Dead) 2020-01-08 - referred to mental health [A02414 Detail]

Download: New_York-2019-A02414-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          2414
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 22, 2019
                                       ___________
        Introduced  by  M.  of  A.  GUNTHER,  ZEBROWSKI, PAULIN, THIELE, JAFFEE,
          ENGLEBRIGHT, COOK, WEPRIN,  OTIS,  STECK,  WILLIAMS,  CUSICK,  COLTON,
          MONTESANO,  PALUMBO, WALLACE -- Multi-Sponsored by -- M. of A. ABBATE,
          ABINANTI, ARROYO,  BUCHWALD,  CROUCH,  DenDEKKER,  DINOWITZ,  GOODELL,
          HAWLEY,  JOHNS, LUPARDO, McDONOUGH, MOSLEY, PALMESANO, PERRY, PRETLOW,
          RAIA, RIVERA, STEC, WALSH -- read once and referred to  the  Committee
          on Mental Health
        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:
     1    Section  1.  Paragraph  2  of  subdivision  (f) of section 7.17 of the
     2  mental hygiene law, as amended by chapter 158 of the laws  of  2005,  is
     3  amended to read as follows:
     4    (2)  The  oversight  and monitoring role of the program coordinator of
     5  the assisted outpatient treatment program  shall  include  each  of  the
     6  following:
     7    (i)  that each assisted outpatient receives the treatment provided for
     8  in the court order issued pursuant to section  9.60  of  this  [chapter]
     9  title;
    10    (ii)  that  existing  services  located  in  the assisted outpatient's
    11  community are utilized whenever practicable;
    12    (iii) that a case manager or assertive  community  treatment  team  is
    13  designated for each assisted outpatient;
    14    (iv)  that  a  mechanism  exists  for  such case manager, or assertive
    15  community treatment team, to regularly report the assisted  outpatient's
    16  compliance, or lack of compliance with treatment, to the director of the
    17  assisted outpatient treatment program;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01829-01-9

        A. 2414                             2
     1    (v)  that directors of community services establish procedures [which]
     2  that provide that reports of persons who may  be  in  need  of  assisted
     3  outpatient  treatment are appropriately investigated in a timely manner;
     4  [and]
     5    (vi)  that  assisted  outpatient treatment services are delivered in a
     6  timely manner[.];
     7    (vii) that, prior to the expiration of assisted  outpatient  treatment
     8  orders,  the  clinical  needs  of  assisted  outpatients  are adequately
     9  reviewed in determining the need  to  petition  for  continued  assisted
    10  outpatient treatment pursuant to subdivision (m) of section 9.60 of this
    11  title;
    12    (viii)  that  the appropriate director is determined for each assisted
    13  outpatient, pursuant to subdivisions (k) and (l) of section 9.60 of this
    14  title; and
    15    (ix) that the office fulfills its duties pursuant to  subdivision  (t)
    16  of section 9.60 of this title to meet local needs for training of judges
    17  and court personnel.
    18    §  2.  Subdivision  (f)  of  section 7.17 of the mental hygiene law is
    19  amended by adding a new paragraph 5 to read as follows:
    20    (5) The commissioner shall develop  an  educational  pamphlet  on  the
    21  process  of  petitioning  for  assisted outpatient treatment for dissem-
    22  ination to individuals seeking to submit reports of persons who  may  be
    23  in  need  of  assisted  outpatient treatment, and individuals seeking to
    24  file a petition pursuant to subparagraph (i) or (ii) of paragraph one of
    25  subdivision (f) of section 9.60 of this title. Such pamphlet  shall  set
    26  forth,  in  plain  language: the criteria for assisted outpatient treat-
    27  ment, resources available to such individuals, the  responsibilities  of
    28  program  coordinators  and directors of community services, a summary of
    29  current law, the process for petitioning for continued  assisted  outpa-
    30  tient  treatment, and other such information the commissioner determines
    31  to be pertinent.
    32    § 3.  Subdivision (b) of section 9.47 of the mental  hygiene  law,  as
    33  amended  by chapter 158 of the laws of 2005, paragraphs 5 and 6 as added
    34  and paragraph 7 as renumbered by chapter 1  of  the  laws  of  2013,  is
    35  amended to read as follows:
    36    (b) All directors of community services shall be responsible for:
    37    (1) receiving reports of persons who may be in need of assisted outpa-
    38  tient treatment pursuant to section 9.60 of this article and documenting
    39  the receipt date of such reports;
    40    (2) conducting timely investigations of such reports received pursuant
    41  to  paragraph  one of this subdivision and providing written notice upon
    42  the completion of investigations to reporting persons and program  coor-
    43  dinators,  appointed  by the commissioner [of mental health] pursuant to
    44  subdivision (f) of section 7.17  of  this  title,  and  documenting  the
    45  initiation  and completion dates of such investigations and the disposi-
    46  tions;
    47    (3) filing of petitions for assisted outpatient treatment pursuant  to
    48  [paragraph] subparagraph (vii) of paragraph one of subdivision [(e)] (f)
    49  of  section  9.60  of  this article, and documenting the petition filing
    50  [date] dates and the [date] dates of the court [order] orders;
    51    (4) coordinating the timely delivery of court  ordered  services  with
    52  program coordinators and documenting the date assisted outpatients begin
    53  to receive the services mandated in the court order; [and]
    54    (5)  ensuring  evaluation  of the need for ongoing assisted outpatient
    55  treatment pursuant to subdivision [(k)] (m)  of  section  9.60  of  this

        A. 2414                             3
     1  article  prior  to  the  expiration of any assisted outpatient treatment
     2  order;
     3    (6)  if  he  or  she  has  been  ordered to provide for or arrange for
     4  assisted outpatient treatment pursuant to paragraph five of  subdivision
     5  [(j)]  (k)  of  section  9.60  of this article or became the appropriate
     6  director pursuant to this paragraph or subdivision (c) of  section  9.48
     7  of this article, notifying the director of community services of the new
     8  county  of  residence  when  he  or  she  has  reason to believe that an
     9  assisted outpatient has or will change his or her  county  of  residence
    10  during the pendency of an assisted outpatient treatment order. Upon such
    11  change  of  residence, the director of the new county of residence shall
    12  become the appropriate director, as such term is defined in section 9.60
    13  of this article; [and]
    14    (7) notifying program coordinators when assisted outpatients cannot be
    15  located after reasonable efforts or are believed to have taken residence
    16  outside of the local governmental unit served; and
    17    (8) reporting on a quarterly basis to program coordinators the  infor-
    18  mation collected pursuant to this subdivision.
    19    § 4.  Paragraphs (viii) and (ix) of subdivision (b) of section 9.48 of
    20  the  mental hygiene law are renumbered paragraphs (ix) and (x) and a new
    21  paragraph (viii) is added to read as follows:
    22    (viii) an account of any court order  expiration,  including  but  not
    23  limited  to  the  director's determination as to whether to petition for
    24  continued assisted outpatient treatment, pursuant  to  section  9.60  of
    25  this  article,  the basis for such determination, and the disposition of
    26  any such petition;
    27    § 5. Section 9.60 of the mental hygiene law, as amended by chapter 158
    28  of the laws of 2005, paragraph  1  of  subdivision  (a)  as  amended  by
    29  section  1  of part E of chapter 111 of the laws of 2010, paragraph 3 of
    30  subdivision (a), paragraphs 2 and 5 of subdivision (j), and subdivisions
    31  (k) and (n) as amended by chapter 1 of the laws of 2013, paragraph 5  of
    32  subdivision (c) as amended by chapter 137 of the laws of 2005, paragraph
    33  4  of  subdivision (e) as amended by chapter 382 of the laws of 2015, is
    34  amended to read as follows:
    35  § 9.60 Assisted outpatient treatment.
    36    (a) Definitions. For purposes of this  section,  the  following  defi-
    37  nitions shall apply:
    38    (1)  "assisted  outpatient  treatment" shall mean categories of outpa-
    39  tient services [which] that have been ordered by the court  pursuant  to
    40  this  section.  Such treatment shall include case management services or
    41  assertive community treatment team  services  to  provide  care  coordi-
    42  nation,  and  may  also  include  any  of  the  following  categories of
    43  services: medication support; medication education or symptom management
    44  education; periodic blood tests or urinalysis  to  determine  compliance
    45  with prescribed medications; individual or group therapy; day or partial
    46  day  programming  activities;  educational  and  vocational  training or
    47  activities; appointment of a representative  payee  or  other  financial
    48  management  services,  subject  to final approval of the Social Security
    49  Administration, where applicable; alcohol or substance  abuse  treatment
    50  and  counseling and periodic or random tests for the presence of alcohol
    51  or illegal drugs for persons with a  history  of  alcohol  or  substance
    52  abuse; supervision of living arrangements; and any other services within
    53  a  local  services  plan developed pursuant to article forty-one of this
    54  chapter, clinical or non-clinical,  prescribed  to  treat  the  person's
    55  mental illness and to assist the person in living and functioning in the
    56  community,  or to attempt to prevent a relapse or deterioration that may

        A. 2414                             4
     1  reasonably be predicted to result in [suicide] serious physical harm  to
     2  any person or the need for hospitalization.
     3    (2)  "director"  shall  mean  the  director of community services of a
     4  local governmental unit, or the director of a hospital licensed or oper-
     5  ated by the office of mental health which operates, directs  and  super-
     6  vises an assisted outpatient treatment program.
     7    (3)  "director  of  community  services" and "local governmental unit"
     8  shall have the same meanings as provided in article  forty-one  of  this
     9  chapter. The "appropriate director" shall mean the director of community
    10  services of the county where the assisted outpatient resides, even if it
    11  is  a  different  county  than  the county where the assisted outpatient
    12  treatment order was originally issued.
    13    (4) "assisted outpatient treatment program" shall  mean  a  system  to
    14  arrange  for  and coordinate the provision of assisted outpatient treat-
    15  ment, to monitor treatment compliance by assisted outpatients, to evalu-
    16  ate the condition or needs of assisted outpatients, to take  appropriate
    17  steps to address the needs of such individuals, and to ensure compliance
    18  with court orders.
    19    (5) "assisted outpatient" shall mean the person under a court order to
    20  receive assisted outpatient treatment.
    21    (6)  "subject  of the petition" or "subject" shall mean the person who
    22  is alleged in a petition, filed  pursuant  to  the  provisions  of  this
    23  section, to meet the criteria for assisted outpatient treatment.
    24    (7)  "correctional  facility"  and "local correctional facility" shall
    25  have the same meanings as provided in section two of the correction law.
    26    (8) "health care proxy" and "health care agent" shall  have  the  same
    27  meanings as provided in article twenty-nine-C of the public health law.
    28    (9)  "program  coordinator"  shall mean an individual appointed by the
    29  commissioner [of mental health], pursuant to subdivision (f) of  section
    30  7.17  of this chapter, who is responsible for the oversight and monitor-
    31  ing of assisted outpatient treatment programs.
    32    (b) Programs. The director of community services of each local govern-
    33  mental unit shall operate, direct and supervise an  assisted  outpatient
    34  treatment  program.  The  director of a hospital licensed or operated by
    35  the office [of mental health]  may  operate,  direct  and  supervise  an
    36  assisted  outpatient treatment program, upon approval by the commission-
    37  er. Directors of community services shall be permitted  to  satisfy  the
    38  provisions  of  this subdivision through the operation of joint assisted
    39  outpatient treatment programs. Nothing  in  this  subdivision  shall  be
    40  interpreted  to  preclude  the  combination  or  coordination of efforts
    41  between and among local governmental units and  hospitals  in  providing
    42  and coordinating assisted outpatient treatment.
    43    (c)  Criteria.  A person may be ordered to receive assisted outpatient
    44  treatment if the court finds that such person:
    45    (1) is eighteen years of age or older; and
    46    (2) is suffering from a mental illness; and
    47    (3) is unlikely to survive safely  in  the  community  without  super-
    48  vision, based on a clinical determination; and
    49    (4)  has  a  history  of  lack of compliance with treatment for mental
    50  illness that has:
    51    (i) [prior to the filing of the petition,] at least twice  within  the
    52  [last]  thirty-six  months  prior  to  the filing of the petition been a
    53  significant factor in necessitating hospitalization in  a  hospital,  or
    54  receipt  of  services  in  a  forensic  or other mental health unit of a
    55  correctional facility or a local correctional facility[, not including];
    56  provided that such thirty-six month period  shall  be  extended  by  the

        A. 2414                             5
     1  length  of  any current period[, or period ending] of hospitalization or
     2  incarceration, and any such  period  that  ended  within  the  last  six
     3  months[,  during  which the person was or is hospitalized or incarcerat-
     4  ed]; or
     5    (ii)  within  forty-eight  months prior to the filing of the petition,
     6  resulted in one or more acts of serious violent behavior toward self  or
     7  others  or  threats of, or attempts at, serious physical harm to self or
     8  others [within the last forty-eight  months,  not  including];  provided
     9  that  such  forty-eight  month period shall be extended by the length of
    10  any current period[, or period ending] of hospitalization or  incarcera-
    11  tion,  and  any  such  period that ended within the last six months[, in
    12  which the person was or is hospitalized or incarcerated]; and
    13    (5) is, as a result of his or her mental illness, unlikely  to  volun-
    14  tarily  participate in outpatient treatment that would enable him or her
    15  to live safely in the community; and
    16    (6) in view of his or her treatment history and current  behavior,  is
    17  in  need  of assisted outpatient treatment in order to prevent a relapse
    18  or deterioration which would be likely to result in serious harm to  the
    19  person or others as defined in section 9.01 of this article; and
    20    (7) is likely to benefit from assisted outpatient treatment.
    21    (d) Health care proxy. Nothing in this section shall preclude a person
    22  with  a  health  care proxy from being subject to a petition pursuant to
    23  this chapter and consistent with article  twenty-nine-C  of  the  public
    24  health law.
    25    (e)  Investigation of reports. The commissioner shall promulgate regu-
    26  lations establishing a procedure to ensure that reports of a person  who
    27  may  be  in  need  of  assisted  outpatient  treatment,  including those
    28  received from family and community members of such person, are  investi-
    29  gated in a timely manner and, where appropriate, result in the filing of
    30  petitions for assisted outpatient treatment.
    31    (f)  Petition  to  the  court. (1) A petition for an order authorizing
    32  assisted outpatient treatment may be filed  in  the  supreme  or  county
    33  court  in  the county in which the subject of the petition is present or
    34  reasonably believed to  be  present.    When  a  director  of  community
    35  services  has  reason to believe that an assisted outpatient has changed
    36  his or her county of residence, future petitions and applications  under
    37  this  section  may  be  filed  in the supreme or county court in the new
    38  county of residence, which shall have concurrent jurisdiction  with  the
    39  court that initially ordered such treatment. Such petition may be initi-
    40  ated only by the following persons:
    41    (i) any person eighteen years of age or older with whom the subject of
    42  the petition resides; or
    43    (ii)  the  parent,  spouse, sibling eighteen years of age or older, or
    44  child eighteen years of age or older of the subject of the petition; or
    45    (iii) the director of a hospital in which the subject of the  petition
    46  is  hospitalized,  or  pursuant  to  section  four  hundred  four of the
    47  correction law; or
    48    (iv) the director of any public or charitable organization, agency  or
    49  home  providing mental health services to the subject of the petition or
    50  in whose institution the subject of the petition resides; or
    51    (v) a qualified psychiatrist who is either supervising  the  treatment
    52  of or treating the subject of the petition for a mental illness; or
    53    (vi)  a  psychologist, licensed pursuant to article one hundred fifty-
    54  three of the education law, or a social  worker,  licensed  pursuant  to
    55  article one hundred fifty-four of the education law, who is treating the
    56  subject of the petition for a mental illness; or

        A. 2414                             6
     1    (vii)  the  director of community services, or his or her designee, or
     2  the social services official, as defined in the social services law,  of
     3  the  city  or  county in which the subject of the petition is present or
     4  reasonably believed to be present; or
     5    (viii) a parole officer or probation officer assigned to supervise the
     6  subject of the petition[.]; or
     7    (ix)  the  director of the hospital or the superintendent of a correc-
     8  tional facility in which the subject  of  the  petition  is  imprisoned,
     9  pursuant to section four hundred four of the correction law.
    10    (2)  The  commissioner  shall promulgate regulations pursuant to which
    11  persons initiating a petition, pursuant to subparagraphs (i) and (ii) of
    12  paragraph one of this subdivision, may receive assistance in filing such
    13  petitions, where appropriate, as determined pursuant to subdivision  (e)
    14  of this section.
    15    (3) The petition shall state:
    16    (i)  each  of  the  criteria  for assisted outpatient treatment as set
    17  forth in subdivision (c) of this section;
    18    (ii) facts which support the petitioner's belief that the  subject  of
    19  the  petition  meets  each  criterion,  provided that the hearing on the
    20  petition need not be limited to the stated facts; and
    21    (iii) that the subject of the petition is present,  or  is  reasonably
    22  believed to be present, within the county where such petition is filed.
    23    [(3)] (4) The petition shall be accompanied by an affirmation or affi-
    24  davit of a physician, who shall not be the petitioner, stating that such
    25  physician  is willing and able to testify at the hearing on the petition
    26  and that either [that]:
    27    (i) such physician has personally examined the subject of the petition
    28  no more than ten days prior to the submission  of  the  petition[,]  and
    29  recommends  assisted  outpatient  treatment for the subject of the peti-
    30  tion[, and is willing and able to testify at the hearing  on  the  peti-
    31  tion]; or
    32    (ii)  no  more than ten days prior to the filing of the petition, such
    33  physician or his or her designee has made appropriate attempts  but  has
    34  not  been  successful in eliciting the cooperation of the subject of the
    35  petition to submit to an  examination,  such  physician  has  reason  to
    36  suspect that the subject of the petition meets the criteria for assisted
    37  outpatient  treatment, and such physician is willing and able to examine
    38  the subject of the petition [and testify at the hearing on the petition]
    39  prior to providing testimony.
    40    [(4)] (5) In counties with a population of less than eighty  thousand,
    41  the  affirmation or affidavit required by paragraph [three] four of this
    42  subdivision may be made by a physician who is an employee of the office.
    43  The office is authorized and directed to make available, at no  cost  to
    44  the  county, a qualified physician for the purpose of making such affir-
    45  mation or affidavit consistent with the provisions of such paragraph.
    46    [(f)] (g) Service. The petitioner shall cause written  notice  of  the
    47  petition  to  be given to the subject of the petition and a copy thereof
    48  to be given personally or by mail to the persons listed in section  9.29
    49  of this article, the mental hygiene legal service, the health care agent
    50  if  any  such  agent is known to the petitioner, the appropriate program
    51  coordinator, and the appropriate director of community services, if such
    52  director is not the petitioner.
    53    [(g)] (h) Right to counsel. The subject of the petition shall have the
    54  right to be represented by the mental hygiene legal service, or private-
    55  ly financed counsel, at all stages of a proceeding commenced under  this
    56  section.

        A. 2414                             7
     1    [(h)]  (i)  Hearing. (1) Upon receipt of the petition, the court shall
     2  fix the date for a hearing. Such date shall be no later than three  days
     3  from  the  date such petition is received by the court, excluding Satur-
     4  days, Sundays and holidays. Adjournments shall  be  permitted  only  for
     5  good cause shown. In granting adjournments, the court shall consider the
     6  need  for  further  examination  by a physician or the potential need to
     7  provide assisted outpatient treatment  expeditiously.  The  court  shall
     8  cause  the  subject  of  the petition, any other person receiving notice
     9  pursuant to subdivision [(f)] (g) of this section, the  petitioner,  the
    10  physician  whose  affirmation or affidavit accompanied the petition, and
    11  such other persons as the court may determine  to  be  advised  of  such
    12  date.  Upon  such  date, or upon such other date to which the proceeding
    13  may be adjourned, the court shall hear testimony and, if  it  be  deemed
    14  advisable  and  the  subject  of  the petition is available, examine the
    15  subject of the petition in or out of court. If the subject of the  peti-
    16  tion  does not appear at the hearing, and appropriate attempts to elicit
    17  the attendance of the subject have failed, the  court  may  conduct  the
    18  hearing  in  the  subject's  absence.  In such case, the court shall set
    19  forth the factual basis for conducting the hearing without the  presence
    20  of the subject of the petition.
    21    (2)  The court shall not order assisted outpatient treatment unless an
    22  examining physician, who recommends assisted  outpatient  treatment  and
    23  has  personally  examined  the  subject of the petition no more than ten
    24  days before the filing of the petition, testifies in person at the hear-
    25  ing. Such physician shall state the facts  and  clinical  determinations
    26  which support the allegation that the subject of the petition meets each
    27  of  the  criteria  for  assisted outpatient treatment; provided that the
    28  parties may stipulate, upon mutual consent, that such physician need not
    29  testify.
    30    (3) If the subject of the petition has refused to  be  examined  by  a
    31  physician,  the  court may request the subject to consent to an examina-
    32  tion by a physician appointed by the court. If the subject of the  peti-
    33  tion  does  not  consent and the court finds reasonable cause to believe
    34  that the allegations in the petition are true, the court may order peace
    35  officers, acting pursuant to their special duties,  or  police  officers
    36  who  are  members  of  an authorized police department or force, or of a
    37  sheriff's department to take the subject of the  petition  into  custody
    38  and  transport  him or her to a hospital for examination by a physician.
    39  Retention of the subject of the petition  under  such  order  shall  not
    40  exceed twenty-four hours. The examination of the subject of the petition
    41  may  be performed by the physician whose affirmation or affidavit accom-
    42  panied the petition pursuant to paragraph [three]  four  of  subdivision
    43  [(e)]  (f)  of  this  section,  if  such physician is privileged by such
    44  hospital or otherwise authorized by such hospital  to  do  so.  If  such
    45  examination  is  performed by another physician, the examining physician
    46  may consult with the physician whose affirmation or  affidavit  accompa-
    47  nied  the  petition  as  to  whether  the subject meets the criteria for
    48  assisted outpatient treatment.
    49    (4) A physician who testifies pursuant to paragraph two of this subdi-
    50  vision shall state: (i) the facts [which]  and  clinical  determinations
    51  that  support the allegation that the subject meets each of the criteria
    52  for assisted outpatient treatment, (ii) that the treatment is the  least
    53  restrictive  alternative,  (iii)  the  recommended  assisted  outpatient
    54  treatment, and (iv) the rationale for the  recommended  assisted  outpa-
    55  tient  treatment.  If  the  recommended  assisted  outpatient  treatment
    56  includes medication, such physician's testimony shall describe the types

        A. 2414                             8
     1  or classes of medication which should be authorized, shall describe  the
     2  beneficial  and  detrimental physical and mental effects of such medica-
     3  tion, and shall recommend whether such medication should be  self-admin-
     4  istered or administered by authorized personnel.
     5    (5)  The  subject  of the petition shall be afforded an opportunity to
     6  present evidence, to call witnesses on his or her behalf, and to  cross-
     7  examine adverse witnesses.
     8    [(i)]  (j)  Written  treatment  plan.  (1)  The  court shall not order
     9  assisted outpatient treatment unless a physician appointed by the appro-
    10  priate director,  in  consultation  with  such  director,  develops  and
    11  provides  to  the  court  a proposed written treatment plan. The written
    12  treatment plan shall  include  case  management  services  or  assertive
    13  community  treatment  team  services  to  provide care coordination. The
    14  written treatment plan also shall include all categories of services, as
    15  set forth in paragraph one of subdivision (a)  of  this  section,  which
    16  such  physician recommends that the subject of the petition receive. All
    17  service providers shall be notified regarding  their  inclusion  in  the
    18  written  treatment  plan. If the written treatment plan includes medica-
    19  tion, it shall state whether such medication should be self-administered
    20  or administered by authorized personnel,  and  shall  specify  type  and
    21  dosage  range  of  medication most likely to provide maximum benefit for
    22  the subject. If the written treatment plan includes alcohol or substance
    23  abuse counseling and  treatment,  such  plan  may  include  a  provision
    24  requiring  relevant  testing  for  either  alcohol or illegal substances
    25  provided the physician's  clinical  basis  for  recommending  such  plan
    26  provides sufficient facts for the court to find (i) that such person has
    27  a  history  of  alcohol or substance abuse that is clinically related to
    28  the mental illness; and (ii) that such testing is necessary to prevent a
    29  relapse or deterioration which would be likely to result in serious harm
    30  to the person or others. If a director is the  petitioner,  the  written
    31  treatment  plan shall be provided to the court no later than the date of
    32  the hearing on the petition. If a person other than a  director  is  the
    33  petitioner,  such  plan shall be provided to the court no later than the
    34  date set by the court pursuant to paragraph three of  subdivision  [(j)]
    35  (k) of this section.
    36    (2)  The  physician  appointed  to  develop the written treatment plan
    37  shall provide the following persons  with  an  opportunity  to  actively
    38  participate  in  the  development of such plan: the subject of the peti-
    39  tion; the treating physician, if  any;  and  upon  the  request  of  the
    40  subject  of  the  petition,  an  individual  significant  to the subject
    41  including any relative, close friend or individual  otherwise  concerned
    42  with  the  welfare  of the subject. The appointed physician shall make a
    43  reasonable effort to gather relevant information for the development  of
    44  the  treatment  plan from the subject of the petition's family member or
    45  members, or his or her significant other. If the subject of the petition
    46  has executed a health care proxy, the appointed physician shall consider
    47  any directions included in such proxy in developing the  written  treat-
    48  ment plan.
    49    (3)  The  court shall not order assisted outpatient treatment unless a
    50  physician appearing on behalf of a director  testifies  to  explain  the
    51  written  proposed  treatment  plan; provided that the parties may stipu-
    52  late, upon mutual consent, that such physician need not testify.    Such
    53  physician  shall  state  the categories of assisted outpatient treatment
    54  recommended, the rationale for each such category, facts which establish
    55  that such treatment is the least restrictive alternative,  and,  if  the
    56  recommended assisted outpatient treatment plan includes medication, such

        A. 2414                             9
     1  physician  shall  state  the types or classes of medication recommended,
     2  the beneficial and detrimental physical and mental effects of such medi-
     3  cation, and whether  such  medication  should  be  self-administered  or
     4  administered  by an authorized professional. If the subject of the peti-
     5  tion has executed a health care proxy, such physician  shall  state  the
     6  consideration given to any directions included in such proxy in develop-
     7  ing  the written treatment plan. If a director is the petitioner, testi-
     8  mony pursuant to this paragraph shall be given at  the  hearing  on  the
     9  petition.  If  a  person  other  than a director is the petitioner, such
    10  testimony shall be given on the date set by the court pursuant to  para-
    11  graph three of subdivision [(j)] (k) of this section.
    12    [(j)] (k) Disposition. (1) If after hearing all relevant evidence, the
    13  court does not find by clear and convincing evidence that the subject of
    14  the  petition  meets the criteria for assisted outpatient treatment, the
    15  court shall dismiss the petition.
    16    (2) If after hearing all relevant evidence, the court finds  by  clear
    17  and  convincing  evidence  that  the  subject  of the petition meets the
    18  criteria for assisted outpatient treatment, and there is no  appropriate
    19  and  feasible  less  restrictive  alternative,  the  court may order the
    20  subject to receive assisted outpatient treatment for an  initial  period
    21  not to exceed one year. In fashioning the order, the court shall specif-
    22  ically  make findings by clear and convincing evidence that the proposed
    23  treatment is the least restrictive treatment  appropriate  and  feasible
    24  for  the subject. The order shall state an assisted outpatient treatment
    25  plan, which shall include all categories of assisted  outpatient  treat-
    26  ment,  as set forth in paragraph one of subdivision (a) of this section,
    27  which the assisted outpatient is to receive, but shall not  include  any
    28  such category that has not been recommended in [both] the proposed writ-
    29  ten  treatment  plan  and  [the]  in any testimony provided to the court
    30  pursuant to subdivision [(i)](j) of this section.
    31    (3) If after hearing all relevant evidence presented by  a  petitioner
    32  who  is not a director, the court finds by clear and convincing evidence
    33  that the subject of the petition meets the criteria for assisted  outpa-
    34  tient  treatment,  and  the  court has yet to be provided with a written
    35  proposed treatment plan and testimony pursuant to subdivision [(i)]  (j)
    36  of  this  section,  the  court  shall  order the appropriate director to
    37  provide the court with such plan and testimony no later than  the  third
    38  day,  excluding  Saturdays,  Sundays and holidays, immediately following
    39  the date of such order; provided that the  parties  may  stipulate  upon
    40  mutual consent that such testimony need not be provided.  Upon receiving
    41  such  plan  and  any  required  testimony,  the court may order assisted
    42  outpatient treatment as provided in paragraph two of this subdivision.
    43    (4) A court may order  the  patient  to  self-administer  psychotropic
    44  drugs or accept the administration of such drugs by authorized personnel
    45  as  part  of  an  assisted  outpatient treatment program. Such order may
    46  specify the type and dosage range of such psychotropic  drugs  and  such
    47  order  shall  be  effective for the duration of such assisted outpatient
    48  treatment.
    49    (5) If the petitioner is the director of a hospital that  operates  an
    50  assisted  outpatient treatment program, the court order shall direct the
    51  hospital director to provide or arrange for all categories  of  assisted
    52  outpatient  treatment  for the assisted outpatient throughout the period
    53  of the order. In all other instances, the order shall require the appro-
    54  priate director, as that term is defined in this section, to provide  or
    55  arrange  for  all  categories  of  assisted outpatient treatment for the
    56  assisted outpatient throughout the period of the order.   Orders  issued

        A. 2414                            10
     1  on  or  after the effective date of the chapter of the laws of two thou-
     2  sand nineteen that amended this section shall  require  the  appropriate
     3  director  "as  determined  by  the  program  coordinator"  to provide or
     4  arrange  for  all  categories  of  assisted outpatient treatment for the
     5  assisted outpatient throughout the period of the order.
     6    (6) The director shall cause a copy of any court order issued pursuant
     7  to this section to be served personally, or by mail, facsimile or  elec-
     8  tronic  means,  upon  the  assisted outpatient, the mental hygiene legal
     9  service or anyone  acting  on  the  assisted  outpatient's  behalf,  the
    10  original  petitioner, identified service providers, and all others enti-
    11  tled to notice under subdivision [(f)] (g) of this section.
    12    [(k)] (l) Relocation of assisted outpatients. The  commissioner  shall
    13  promulgate  regulations  requiring that, during the period of the order,
    14  an assisted outpatient and any other appropriate  persons  shall  notify
    15  the  program coordinator within a reasonable time prior to such assisted
    16  outpatient relocating within the state of New York to an area not served
    17  by the director who has been directed to  provide  or  arrange  for  the
    18  assisted outpatient treatment. Upon receiving notification of such relo-
    19  cation,  the  program  coordinator shall redetermine who the appropriate
    20  director shall be and cause a copy of the court order and treatment plan
    21  to be transmitted to such director.
    22    (m) Petition for [additional  periods  of]  continued  treatment.  (1)
    23  [Prior]  Within thirty days prior to the expiration of an order pursuant
    24  to this section, the  appropriate  director  shall  review  whether  the
    25  assisted  outpatient  continues to meet the criteria for assisted outpa-
    26  tient treatment. [If, as documented in the petition, the director deter-
    27  mines that such criteria continue to be  met  or  has  made  appropriate
    28  attempts  to,  but has not been successful in eliciting, the cooperation
    29  of the subject to submit to an examination, within thirty days prior  to
    30  the expiration of an order of assisted outpatient treatment, such direc-
    31  tor may petition the court to order continued assisted outpatient treat-
    32  ment  pursuant  to  paragraph  two of this subdivision. Upon determining
    33  whether such criteria continue to be met, such director shall notify the
    34  program coordinator in writing as to whether a  petition  for  continued
    35  assisted  outpatient  treatment is warranted and whether such a petition
    36  was or will be filed.] Upon determining that one or more of such  crite-
    37  ria  are no longer met, such director shall notify the program coordina-
    38  tor in writing that a petition for continued assisted outpatient  treat-
    39  ment  is not warranted.  Upon determining that such criteria continue to
    40  be met, he or she shall petition the court to order  continued  assisted
    41  outpatient  treatment for a period not to exceed one year from the expi-
    42  ration date of the current order. If the  court's  disposition  of  such
    43  petition  does  not  occur  prior  to the expiration date of the current
    44  order, the current order shall remain in effect until such  disposition.
    45  The  procedures  for  obtaining  any  order pursuant to this subdivision
    46  shall be in accordance with the provisions of the foregoing  subdivision
    47  of  this  section; provided that the time restrictions included in para-
    48  graph four of subdivision (c) of this section shall not  be  applicable.
    49  The  notice  provisions set forth in paragraph six of subdivision (k) of
    50  this section shall be applicable. Any  court  order  requiring  periodic
    51  blood  tests  or urinalysis for the presence of alcohol or illegal drugs
    52  shall be subject to review after six months by the physician who  devel-
    53  oped  the  written treatment plan or another physician designated by the
    54  director, and such physician shall be authorized to terminate such blood
    55  tests or urinalysis without further action by the court.

        A. 2414                            11
     1    (2) Within thirty days prior to the expiration of an order of assisted
     2  outpatient treatment, [the appropriate director or]  the  current  peti-
     3  tioner,  if  the current petition was filed pursuant to subparagraph (i)
     4  or (ii) of paragraph one of subdivision [(e)] (f) of this  section,  and
     5  the  current  petitioner  retains his or her original status pursuant to
     6  the applicable subparagraph, may petition the court to  order  continued
     7  assisted  outpatient  treatment for a period not to exceed one year from
     8  the expiration date of the current order. If the court's disposition  of
     9  such petition does not occur prior to the expiration date of the current
    10  order,  the current order shall remain in effect until such disposition.
    11  The procedures for obtaining any  order  pursuant  to  this  subdivision
    12  shall be in accordance with the provisions of the foregoing subdivisions
    13  of  this  section; provided that the time restrictions included in para-
    14  graph four of subdivision (c) of this section shall not  be  applicable.
    15  The  notice  provisions  set forth in paragraph six of subdivision [(j)]
    16  (k) of this section shall be applicable. Any court order requiring peri-
    17  odic blood tests or urinalysis for the presence of  alcohol  or  illegal
    18  drugs  shall  be subject to review after six months by the physician who
    19  developed the written treatment plan or another physician designated  by
    20  the  director,  and such physician shall be authorized to terminate such
    21  blood tests or urinalysis without further action by the court.
    22    [(l)] (3) If neither the appropriate director nor  the  current  peti-
    23  tioner  petition for continued assisted outpatient treatment pursuant to
    24  this paragraph and the order of the  court  expires,  any  other  person
    25  authorized  to  petition pursuant to paragraph one of subdivision (f) of
    26  this section may bring a new petition for assisted outpatient treatment.
    27  If such new petition is filed less than sixty days after the  expiration
    28  of  such  order,  the  time  restrictions  provided in paragraph four of
    29  subdivision (c) of this section shall not be applicable to the new peti-
    30  tion.
    31    (4) If, thirty days prior to the expiration of an order, the  assisted
    32  outpatient  is  deemed  by  the  appropriate  director to be missing and
    33  thereby unavailable for evaluation as to whether he or she continues  to
    34  meet the criteria for assisted outpatient treatment, such director shall
    35  petition  the  court to extend the term of the current order until sixty
    36  days after such time as the assisted outpatient is located. If the court
    37  grants the extension, the director shall continue reasonable efforts  to
    38  locate  the  assisted outpatient.   Upon location of the assisted outpa-
    39  tient, the director shall review whether the assisted outpatient contin-
    40  ues to meet the criteria for assisted outpatient treatment, pursuant  to
    41  paragraph two of this subdivision.
    42    (n)  Petition  for an order to stay, vacate or modify. (1) In addition
    43  to any other right or remedy available by law with respect to the  order
    44  for  assisted  outpatient treatment, the assisted outpatient, the mental
    45  hygiene legal service, or anyone acting  on  the  assisted  outpatient's
    46  behalf  may  petition  the court on notice to the director, the original
    47  petitioner, and all others entitled to notice  under  subdivision  [(f)]
    48  (g) of this section to stay, vacate or modify the order.
    49    (2)  The  appropriate  director  shall petition the court for approval
    50  before instituting a proposed material change in the assisted outpatient
    51  treatment plan, unless such change is authorized by  the  order  of  the
    52  court.   Such petitions to change an assisted outpatient treatment plan,
    53  as well as petitions for continued treatment, may be made to  any  judge
    54  of  the  supreme  or county courts in the county in which the subject of
    55  the petition is present or reasonably believed to be present. Such peti-
    56  tion shall be filed on notice to all parties entitled  to  notice  under

        A. 2414                            12
     1  subdivision  [(f)]  (g)  of this section. Not later than five days after
     2  receiving such petition, excluding Saturdays, Sundays and holidays,  the
     3  court  shall  hold  a  hearing  on  the  petition;  provided that if the
     4  assisted  outpatient  informs  the  court  that  he or she agrees to the
     5  proposed material change, the court may approve such  change  without  a
     6  hearing.  Non-material changes may be instituted by the director without
     7  court approval. For the purposes of this paragraph, a material change is
     8  an addition or deletion of a category of services to or from  a  current
     9  assisted  outpatient  treatment  plan,  or  any  deviation  without  the
    10  assisted outpatient's consent from the terms of a current order relating
    11  to the administration of psychotropic drugs.
    12    [(m)] (o) Appeals. Review of an order issued pursuant to this  section
    13  shall  be  had  in  like  manner  as  specified  in section 9.35 of this
    14  article; provided that notice shall be provided to all parties  entitled
    15  to notice under subdivision (g) of this section.
    16    [(n)]  (p) Failure to comply with assisted outpatient treatment. Where
    17  in the clinical judgment of a physician, (i)  the  assisted  outpatient,
    18  has  failed or refused to comply with the assisted outpatient treatment,
    19  (ii) efforts were made to solicit compliance, and  (iii)  such  assisted
    20  outpatient  may be in need of involuntary admission to a hospital pursu-
    21  ant to section 9.27 of this article or immediate observation,  care  and
    22  treatment  pursuant to section 9.39 or 9.40 of this article, such physi-
    23  cian may request the appropriate director  of  community  services,  the
    24  director's  designee,  or  any  physician  designated by the director of
    25  community services pursuant to section 9.37 of this article,  to  direct
    26  the  removal  of such assisted outpatient to an appropriate hospital for
    27  an examination to determine if such person  has  a  mental  illness  for
    28  which  he  or she is in need of hospitalization is necessary pursuant to
    29  section 9.27, 9.39 or  9.40  of  this  article[.  Furthermore,  if  such
    30  assisted outpatient refuses to take medications as required by the court
    31  order,  or he or she refuses to take, or fails a blood test, urinalysis,
    32  or alcohol or drug test as required by the court order,  such  physician
    33  may consider such refusal or failure when determining whether]; provided
    34  that  if, after efforts to solicit compliance, such physician determines
    35  that the assisted outpatient's  failure  to  comply  with  the  assisted
    36  outpatient  treatment includes a substantial failure to take medication,
    37  pass or submit to blood testing or urinalysis, or receive treatment  for
    38  alcohol or substance abuse, such physician may presume that the assisted
    39  outpatient  is  in need of an examination to determine whether he or she
    40  has a mental illness for which hospitalization is  necessary.  Upon  the
    41  request  of  such  physician,  the  appropriate director, the director's
    42  designee, or any physician designated pursuant to section 9.37  of  this
    43  article,  may  direct  peace  officers, acting pursuant to their special
    44  duties, or police officers who  are  members  of  an  authorized  police
    45  department  or  force  or of a sheriff's department to take the assisted
    46  outpatient into custody and transport him or her to the hospital operat-
    47  ing the assisted outpatient treatment program or to any hospital author-
    48  ized by the director of community services to receive such persons. Such
    49  law enforcement officials shall  carry  out  such  directive.  Upon  the
    50  request  of  such  physician,  the  appropriate director, the director's
    51  designee, or any physician designated pursuant to section 9.37  of  this
    52  article,  an ambulance service, as defined by subdivision two of section
    53  three thousand one of the public  health  law,  or  an  approved  mobile
    54  crisis outreach team as defined in section 9.58 of this article shall be
    55  authorized  to  take  into  custody and transport any such person to the
    56  hospital operating the assisted outpatient treatment program, or to  any

        A. 2414                            13
     1  other  hospital  authorized  by  the  appropriate  director of community
     2  services to receive such persons. Any director of community services, or
     3  designee, shall be authorized to  direct  the  removal  of  an  assisted
     4  outpatient  who is present in his or her county to an appropriate hospi-
     5  tal, in accordance with the provisions of this subdivision, based upon a
     6  determination of the appropriate director of community services  direct-
     7  ing  the  removal  of such assisted outpatient pursuant to this subdivi-
     8  sion. Such person may be retained for observation,  care  and  treatment
     9  and  further  examination in the hospital for up to seventy-two hours to
    10  permit a physician to determine whether such person has a mental illness
    11  and is in need of involuntary care and treatment in a hospital  pursuant
    12  to  the  provisions of this article. Any continued involuntary retention
    13  of the assisted outpatient in such hospital beyond the initial  seventy-
    14  two hour period shall be in accordance with the provisions of this arti-
    15  cle  relating to the involuntary admission and retention of a person. If
    16  at any time during the seventy-two hour period the person is  determined
    17  not  to  meet the involuntary admission and retention provisions of this
    18  article, and does not agree to stay in the hospital as  a  voluntary  or
    19  informal  patient, he or she must be released. Failure to comply with an
    20  order of assisted outpatient treatment shall not be grounds for involun-
    21  tary civil commitment or a finding of contempt of court.
    22    [(o)] (q) Effect of determination that a person is in need of assisted
    23  outpatient treatment. The determination by a court that a person  is  in
    24  need  of  assisted  outpatient  treatment  shall  not be construed as or
    25  deemed to be a determination that such person is incapacitated  pursuant
    26  to article eighty-one of this chapter.
    27    [(p)] (r) False petition. A person making a false statement or provid-
    28  ing  false information or false testimony in a petition or hearing under
    29  this section shall be subject to criminal prosecution pursuant to  arti-
    30  cle  one  hundred  seventy-five  or article two hundred ten of the penal
    31  law.
    32    [(q)] (s) Exception. Nothing in this section  shall  be  construed  to
    33  affect  the  ability of the director of a hospital to receive, admit, or
    34  retain patients who  otherwise  meet  the  provisions  of  this  article
    35  regarding receipt, retention or admission.
    36    [(r)]  (t)  Education and training. (1) The office [of mental health],
    37  in consultation with the office of court administration,  shall  prepare
    38  educational  and  training  materials  on the use of this section, which
    39  shall be made  available  to  local  governmental  units,  providers  of
    40  services,  judges,  court  personnel,  law enforcement officials and the
    41  general public.
    42    (2) The office, in consultation with  the  office  of  court  adminis-
    43  tration,  shall  establish  a mental health training program for supreme
    44  and county court judges and court  personnel,  and  shall  provide  such
    45  training with such frequency and in such locations as may be appropriate
    46  to  meet  statewide needs.  Such training shall focus on the use of this
    47  section and generally address issues  relating  to  mental  illness  and
    48  mental health treatment.
    49    §  6.  Section  29.15 of the mental hygiene law is amended by adding a
    50  new subdivision (o) to read as follows:
    51    (o) If the director of a department facility  does  not  petition  for
    52  assisted  outpatient  treatment pursuant to section 9.60 of this chapter
    53  upon the discharge of an inpatient admitted pursuant  to  section  9.27,
    54  9.39  or  9.40  of  this  chapter, or upon the expiration of a period of
    55  conditional release for such inpatient, such director shall report  such
    56  discharge  or  such  expiration  in writing to the director of community

        A. 2414                            14
     1  services of the local  governmental  unit  in  which  the  inpatient  is
     2  expected to reside.
     3    §  7.  Subdivision 3 of section 404 of the correction law, as added by
     4  chapter 1 of the laws of 2013, is amended and a  new  subdivision  5  is
     5  added to read as follows:
     6    3.  Within a reasonable period prior to discharge of an inmate commit-
     7  ted from a [state correctional facility from a] hospital in the  depart-
     8  ment  of mental hygiene to the community, the director shall ensure that
     9  a clinical assessment has been completed to determine whether the inmate
    10  meets the criteria for assisted outpatient treatment pursuant to  subdi-
    11  vision (c) of section 9.60 of the mental hygiene law. If, as a result of
    12  such  assessment,  the  director  determines  that the inmate meets such
    13  criteria, prior to discharge the director of the hospital  shall  either
    14  petition  for  a  court  order  pursuant  to  section 9.60 of the mental
    15  hygiene law, or report in writing to the director of community  services
    16  of the local governmental unit in which the inmate is expected to reside
    17  so  that  an  investigation [may] shall be conducted pursuant to section
    18  9.47 of the mental hygiene law.
    19    5. Within a reasonable period prior to  release  or  discharge  of  an
    20  inmate who is not currently committed to a hospital in the department of
    21  mental  hygiene  from a state correctional facility to the community, if
    22  such inmate has a serious mental illness pursuant to  paragraph  (e)  of
    23  subdivision six of section one hundred thirty-seven of this chapter, the
    24  department shall notify the director of a hospital who shall ensure that
    25  a clinical assessment has been completed to determine whether the inmate
    26  meets  the criteria for assisted outpatient treatment pursuant to subdi-
    27  vision (c) of section 9.60 of the mental hygiene law. If, as a result of
    28  such assessment, the director determines  that  the  inmate  meets  such
    29  criteria,  prior  to  release or discharge, the director of the hospital
    30  shall either petition for a court order pursuant to section 9.60 of  the
    31  mental  hygiene  law,  or report in writing to the director of community
    32  services of the local governmental unit in which the inmate is  expected
    33  to  reside  so  that  an  investigation  shall  be conducted pursuant to
    34  section 9.47 of the mental hygiene law.
    35    § 8. Section 18 of chapter 408  of  the  laws  of  1999,  constituting
    36  Kendra's  Law,  as amended by chapter 67 of the laws of 2017, is amended
    37  to read as follows:
    38    § 18. This act shall take effect immediately,  provided  that  section
    39  fifteen  of this act shall take effect April 1, 2000, provided, further,
    40  that subdivision (e) of section 9.60 of the mental hygiene law as  added
    41  by  section  six  of  this act shall be effective 90 days after this act
    42  shall become law[; and that this act shall expire and be deemed repealed
    43  June 30, 2022].
    44    § 9. Severability. If any clause, sentence, paragraph, section or part
    45  of this act shall be adjudged by any court of competent jurisdiction  to
    46  be  invalid,  and  after  exhaustion of all further judicial review, the
    47  judgment shall not affect, impair or invalidate the  remainder  thereof,
    48  but  shall  be  confined in its operation to the clause, sentence, para-
    49  graph, section or part thereof directly involved in the controversy.
    50    § 10.  This act shall take effect immediately.
feedback