Bill Text: NY A03745 | 2019-2020 | General Assembly | Introduced


Bill Title: Establishes protocols for assisted outpatient treatment for substance abuse; provides criteria for assisted outpatient treatment for substance abuse; provides for service, right to counsel, hearings, appeals and applications for additional periods of treatment; makes related changes.

Spectrum: Slight Partisan Bill (Republican 5-2)

Status: (Introduced - Dead) 2020-01-08 - referred to alcoholism and drug abuse [A03745 Detail]

Download: New_York-2019-A03745-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          3745
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 31, 2019
                                       ___________
        Introduced  by  M.  of  A.  GUNTHER, CUSICK, GOODELL, MORINELLO, NORRIS,
          JOHNS, WALSH -- read once and referred to the Committee on  Alcoholism
          and Drug Abuse
        AN  ACT  to  amend  the  mental hygiene law, in relation to establishing
          protocols for assisted outpatient treatment for substance abuse
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  The mental hygiene law is amended by adding a new article
     2  23 to read as follows:
     3                                 ARTICLE 23
     4              ASSISTED OUTPATIENT TREATMENT FOR SUBSTANCE ABUSE
     5  Section 23.01 Assisted outpatient treatment for substance abuse.
     6          23.03 Definitions.
     7          23.05 Criteria for assisted outpatient treatment  for  substance
     8                  abuse.
     9          23.07 Petition to the court.
    10          23.09 Service.
    11          23.11 Right to counsel.
    12          23.13 Hearing.
    13          23.15 Written treatment plan.
    14          23.17 Disposition.
    15          23.19 Petitions  for  additional periods of treatment; petitions
    16                  for an order to stay, vacate or modify; and appeals.
    17          23.21 Failure to comply with assisted outpatient treatment.
    18          23.23 Effect of determination  that  a  person  is  in  need  of
    19                  assisted outpatient treatment.
    20          23.25 False petition.
    21          23.27 Education and training.
    22          23.29 The  assisted  outpatient  treatment  for  substance abuse
    23                  advisory council.
    24  § 23.01 Assisted outpatient treatment for substance abuse.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01183-01-9

        A. 3745                             2
     1    There is hereby established  the  assisted  outpatient  treatment  for
     2  substance  abuse  program.  This  program  shall  serve individuals with
     3  substance use disorders who, due to opioid abuse,  require  services  to
     4  prevent them from causing harm to themselves and others. The commission-
     5  er,  in  consultation  with the commissioner of the department of health
     6  and the commissioner of the office of mental health, and in  conjunction
     7  with  the  assisted  outpatient  treatment  for substance abuse advisory
     8  council, shall promulgate all rules and regulations necessary to  imple-
     9  ment the provisions of this article.
    10  § 23.03 Definitions.
    11    For  the  purposes  of  this  article, the following definitions shall
    12  apply:
    13    (a) "Assisted outpatient treatment for  substance  abuse"  shall  mean
    14  categories  of  services that have been ordered by the court pursuant to
    15  this article. Such treatment shall include case management  services  to
    16  provide  care  coordination,  and  may also include any of the following
    17  categories of services: substance use disorder services,  detoxification
    18  as  deemed  appropriate pursuant to a written treatment plan; medication
    19  supported recovery; individual or group  therapy;  day  or  partial  day
    20  programming  activities;  tests  for  the presence of alcohol or illegal
    21  drugs; supervision of living arrangements;  treatment  for  co-occurring
    22  disorders;  and  any  other  services  prescribed  to treat the person's
    23  substance use disorder and to assist the person in living and  function-
    24  ing  in  the  community,  or  to attempt to prevent a relapse or deteri-
    25  oration that may reasonably be predicted  to  result  in  the  need  for
    26  hospitalization or serious harm to the person or others.
    27    (b)  "Assisted outpatient treatment for substance abuse program" shall
    28  mean a system to arrange for, and coordinate the provision of,  assisted
    29  outpatient  treatment  for substance abuse; to monitor treatment compli-
    30  ance by assisted outpatients; to take appropriate steps to  address  the
    31  needs of such individuals; and to ensure compliance with court orders.
    32    (c) "Assisted outpatient" shall mean the person under a court order to
    33  receive  assisted  outpatient  treatment  for  substance  abuse due to a
    34  substance use disorder.
    35    (d) "Opioid" shall mean an opiate, opium, opium poppy or poppy  straw;
    36  and  any  salt,  compound, derivative, or preparation of thereof that is
    37  chemically equivalent or identical to such substances.
    38    (e) "Subject of the petition" or "subject" shall mean the  person  who
    39  is alleged in a petition, filed pursuant to the provisions of this arti-
    40  cle,  to  meet  the  criteria  for  assisted  outpatient  treatment  for
    41  substance abuse.
    42    (f) "Substance use disorder" shall mean the misuse of, dependence  on,
    43  or  addiction  to  a legal or illegal opioid leading to effects that are
    44  detrimental to the individual's  physical  and  mental  health,  or  the
    45  welfare of others.
    46  § 23.05 Criteria for assisted outpatient treatment for substance abuse.
    47    (a)  A  person may be ordered to receive assisted outpatient treatment
    48  for substance abuse if the court finds that such person:
    49    (1) is eighteen years of age or older; and
    50    (2) is suffering from a substance use disorder; and
    51    (3) is unlikely to survive safely  in  the  community  without  super-
    52  vision, based on a clinical determination; and
    53    (4) has a history of lack of compliance with treatment for a substance
    54  use disorder, as evidenced by:
    55    (i)  prior  to  the  filing of the petition, at least twice within the
    56  last thirty-six months, his or her substance use  disorder  has  been  a

        A. 3745                             3
     1  significant  factor  in  necessitating hospitalization in a hospital, as
     2  defined in article twenty-eight of the public health law, or receipt  of
     3  substance abuse treatment services in a correctional facility or a local
     4  correctional  facility,  not  including  any  current  period, or period
     5  ending within the last six months, during which the  person  was  or  is
     6  hospitalized or incarcerated; or
     7    (ii) prior to the filing of the petition, resulted in one or more acts
     8  of  serious  violent  behavior  toward  self or others or threats of, or
     9  attempts at, serious physical harm to self or  others  within  the  last
    10  forty-eight  months,  not including any current period, or period ending
    11  within the last six months, in which the person was or  is  hospitalized
    12  or  incarcerated;  provided,  however, that use of an opioid alone shall
    13  not be deemed as satisfying this requirement; and
    14    (5) is, as a result of his or her substance abuse, unlikely to  volun-
    15  tarily  participate in substance use disorder services that would enable
    16  him or her to live safely in the community; and
    17    (6) in view of his or her treatment history and current  behavior,  is
    18  in need of assisted outpatient treatment for substance abuse in order to
    19  prevent  a  relapse  or  deterioration that would be likely to result in
    20  serious harm to the person or others; and
    21    (7) is likely  to  benefit  from  assisted  outpatient  treatment  for
    22  substance abuse.
    23  § 23.07 Petition to the court.
    24    (a)  A petition for an order authorizing assisted outpatient treatment
    25  for substance abuse may be filed in the supreme or county court  in  the
    26  county  in  which  the  subject of the petition is present or reasonably
    27  believed to be present.  A  petition  to  obtain  an  order  authorizing
    28  assisted  outpatient treatment for substance abuse may be initiated only
    29  by the following persons:
    30    (1) any person eighteen years of age or older with whom the subject of
    31  the petition resides; or
    32    (2) the parent, spouse, sibling, or child of the subject of the  peti-
    33  tion who is eighteen years of age or older; or
    34    (3)  any  other person deemed appropriate by the commissioner in regu-
    35  lation.
    36    (b) The petition shall state:
    37    (1) each  of  the  criteria  for  assisted  outpatient  treatment  for
    38  substance abuse as set forth in section 23.05 of this article;
    39    (2)  facts  which  support the petitioner's belief that the subject of
    40  the petition meets each criterion, provided  that  the  hearing  on  the
    41  petition need not be limited to the stated facts; and
    42    (3)  that  the  subject  of  the petition is present, or is reasonably
    43  believed to be present, within the county where such petition is filed.
    44    (c) The petition shall be accompanied by an affirmation  or  affidavit
    45  of a physician, who shall not be the petitioner, stating either that:
    46    (1) such physician has personally examined the subject of the petition
    47  no  more  than  ten days prior to the submission of the petition, recom-
    48  mends assisted outpatient treatment for substance abuse for the  subject
    49  of  the  petition,  and is willing and able to testify at the hearing on
    50  the petition; or
    51    (2) no more than ten days prior to the filing of  the  petition,  such
    52  physician  or his or her designee has made appropriate attempts, but has
    53  not been successful in eliciting the cooperation of the subject  of  the
    54  petition  to  submit  to  an  examination;  such physician has reason to
    55  suspect that the subject of the petition meets the criteria for assisted
    56  outpatient treatment for substance abuse; and such physician is  willing

        A. 3745                             4
     1  and able to examine the subject of the petition and testify at the hear-
     2  ing on the petition.
     3    (d)  In counties with a population of less than seventy-five thousand,
     4  the affirmation or affidavit required by subdivision (c) of this section
     5  may be made by a physician who is an employee of the office.  The office
     6  is authorized to make available, at no cost to the county,  a  qualified
     7  physician  for  the  purpose  of  making  such  affirmation or affidavit
     8  consistent with the provisions of such subdivision.
     9  § 23.09 Service.
    10    The petitioner shall cause written notice of the petition to be  given
    11  to  the  subject  of  the  petition,  and  a  copy  thereof  to be given
    12  personally or by mail to such other persons as  the  commissioner  deems
    13  appropriate in regulation.
    14  § 23.11 Right to counsel.
    15    The  subject of the petition shall have the right to be represented by
    16  counsel at all stages of a proceeding commenced under this article.
    17  § 23.13 Hearing.
    18    (a) Upon receipt of the petition, the court shall fix the date  for  a
    19  hearing.  Such date shall be no later than three days from the date such
    20  petition is received by the  court,  excluding  Saturdays,  Sundays  and
    21  holidays.  Adjournments shall be permitted only for good cause shown. In
    22  granting adjournments, the court shall consider  the  need  for  further
    23  examination  by  a  physician  or the potential need to provide assisted
    24  outpatient treatment for substance abuse expeditiously. The court  shall
    25  cause  the  subject  of  the petition, any other person receiving notice
    26  pursuant to section 23.09 of this article, the petitioner, the physician
    27  whose affirmation or affidavit accompanied the petition, and such  other
    28  persons as the court may determine to be advised of such date. Upon such
    29  date,  or upon such other date to which the proceeding may be adjourned,
    30  the court shall hear testimony and, if it be deemed  advisable  and  the
    31  subject  of  the petition is available, examine the subject of the peti-
    32  tion in or out of court. If the subject of the petition does not  appear
    33  at the hearing, and appropriate attempts to elicit the attendance of the
    34  subject  have failed, the court may conduct the hearing in the subject's
    35  absence. In such case, the court shall set forth the factual  basis  for
    36  conducting  the hearing without the presence of the subject of the peti-
    37  tion.
    38    (b) The court  shall  not  order  assisted  outpatient  treatment  for
    39  substance  abuse  unless an examining physician, who recommends assisted
    40  outpatient treatment for substance abuse and has personally examined the
    41  subject of the petition no more than six months before the filing of the
    42  petition, testifies in person at the hearing. Such physician shall state
    43  the facts and clinical determinations that support the  allegation  that
    44  the  subject  of  the  petition  meets each of the criteria for assisted
    45  outpatient treatment for substance  abuse.  The  commissioner  shall  in
    46  regulation  address  instances  in  which  the  subject  of the petition
    47  refuses examination by a physician.
    48    (c) A physician who testifies pursuant  to  subdivision  (b)  of  this
    49  section  shall state: (i) the facts that support the allegation that the
    50  subject meets each of the criteria for assisted outpatient treatment for
    51  substance abuse, (ii) that the treatment is the least restrictive alter-
    52  native,  (iii)  the  recommended  assisted  outpatient   treatment   for
    53  substance  abuse,  and  (iv)  the rationale for the recommended assisted
    54  outpatient treatment for substance abuse. If  the  recommended  assisted
    55  outpatient  treatment  for substance abuse includes medication supported

        A. 3745                             5
     1  recovery, such physician's testimony shall provide such details  as  the
     2  commissioner shall require in regulation.
     3    (d)  The  subject  of the petition shall be afforded an opportunity to
     4  present evidence, to call witnesses on his or her behalf, and to  cross-
     5  examine adverse witnesses.
     6  § 23.15 Written treatment plan.
     7    (a)  The  court  shall  not  order  assisted  outpatient treatment for
     8  substance abuse unless a physician develops and provides to the court  a
     9  proposed  written treatment plan, in accordance with regulations promul-
    10  gated by the commissioner. The written treatment plan shall include case
    11  management services to provide care coordination. The written  treatment
    12  plan  also  shall include all categories of services that such physician
    13  recommends that the subject of the petition receive. All substance abuse
    14  programs shall be notified regarding  their  inclusion  in  the  written
    15  treatment plan.
    16    (b)  The  physician  appointed  to  develop the written treatment plan
    17  shall provide the following persons  with  an  opportunity  to  actively
    18  participate  in  the  development of such plan: the subject of the peti-
    19  tion; the treating physician, if  any;  and  upon  the  request  of  the
    20  subject  of  the  petition,  an  individual  significant  to the subject
    21  including any relative, close friend or individual  otherwise  concerned
    22  with  the  welfare  of  the  subject. If the subject of the petition has
    23  executed a health care proxy, the appointed physician shall consider any
    24  directions included in such proxy in developing  the  written  treatment
    25  plan.
    26    (c)  The  court  shall  not  order  assisted  outpatient treatment for
    27  substance abuse unless a physician who developed such plan testifies  to
    28  explain  the proposed written treatment plan. Such physician shall state
    29  the categories of assisted  outpatient  treatment  for  substance  abuse
    30  recommended, the rationale for each such category, facts which establish
    31  that  such treatment is the least restrictive alternative, and any other
    32  information required by the commissioner in regulation. If  the  subject
    33  of  the  petition has executed a health care proxy, such physician shall
    34  state the consideration given to any directions included in  such  proxy
    35  in developing the written treatment plan.
    36  § 23.17 Disposition.
    37    (a) If after hearing all relevant evidence, the court does not find by
    38  clear and convincing evidence that the subject of the petition meets the
    39  criteria  for  assisted  outpatient  treatment  for substance abuse, the
    40  court shall dismiss the petition.
    41    (b) If after hearing all relevant evidence, the court finds  by  clear
    42  and  convincing  evidence  that  the  subject  of the petition meets the
    43  criteria for assisted outpatient  treatment  for  substance  abuse,  and
    44  there  is  no appropriate and feasible less restrictive alternative, the
    45  court may order the subject to receive assisted outpatient treatment for
    46  substance abuse for an initial period not to  exceed  six  months.    In
    47  fashioning  the  order,  the  court  shall specifically make findings by
    48  clear and convincing evidence that the proposed treatment is  the  least
    49  restrictive  treatment  appropriate  and  feasible  for the subject. The
    50  order shall state an assisted outpatient treatment for  substance  abuse
    51  plan,  which  shall include all categories of assisted outpatient treat-
    52  ment for substance abuse that the assisted outpatient is to receive, but
    53  shall not include any such category that has  not  been  recommended  in
    54  both  the  proposed written treatment plan and the testimony provided to
    55  the court pursuant to section 23.15 of this article.

        A. 3745                             6
     1    (c) The commissioner shall establish in regulation procedures for  the
     2  provision  or  arrangement  for  all  categories  of assisted outpatient
     3  treatment for substance abuse to the assisted outpatient throughout  the
     4  period of the order.
     5    (d) The director shall cause a copy of any court order issued pursuant
     6  to  this section to be served personally, or by mail, facsimile or elec-
     7  tronic means, upon the assisted outpatient,  or  anyone  acting  on  the
     8  assisted   outpatient's  behalf,  the  original  petitioner,  identified
     9  service providers, and all others entitled to notice under section 23.09
    10  of this article.
    11  § 23.19 Petitions for additional periods of treatment; petitions for  an
    12            order to stay, vacate or modify; and appeals.
    13    The  commissioner  shall establish in regulation such rules and proce-
    14  dures to ensure that assisted outpatients: receive appropriate substance
    15  use disorder services; are afforded all rights and remedies available by
    16  law with respect to the order  for  assisted  outpatient  treatment  for
    17  substance  abuse,  including  the ability to petition the court to stay,
    18  vacate or modify the order; and are given the opportunity to  appeal  an
    19  order issued pursuant to this article.
    20  § 23.21 Failure to comply with assisted outpatient treatment.
    21    Where  the  subject  fails  to comply with the assisted outpatient for
    22  substance abuse treatment plan set  forth  in  accordance  with  section
    23  23.15  of  this  article,  the subject shall be brought to a facility or
    24  treatment program for emergency services pursuant to  section  22.09  of
    25  this title.
    26  § 23.23 Effect  of  determination  that  a person is in need of assisted
    27            outpatient treatment.
    28    The determination by a court that a person  is  in  need  of  assisted
    29  outpatient  treatment  for  substance abuse shall not be construed as or
    30  deemed to be a determination that such person is incapacitated  pursuant
    31  to article eighty-one of this chapter.
    32  § 23.25 False petition.
    33    A  person  making  a false statement or providing false information or
    34  false testimony in a petition or hearing under  this  section  shall  be
    35  subject  to  criminal prosecution pursuant to article one hundred seven-
    36  ty-five or article two hundred ten of the penal law.
    37  § 23.27 Education and training.
    38    (a) The office of alcoholism and substance abuse services, in  consul-
    39  tation  with  the  office  of court administration, shall prepare educa-
    40  tional and training materials on the use of this section, which shall be
    41  made available to local governmental units, providers of services, judg-
    42  es, court personnel, law enforcement officials and the general public.
    43    (b) The office, in consultation with  the  office  of  court  adminis-
    44  tration,  shall establish a substance abuse training program for supreme
    45  and county court judges and court personnel. Such training  shall  focus
    46  on  the  use  of  this  section and generally address issues relating to
    47  heroin and opioid addiction.
    48  § 23.29 The assisted outpatient treatment for substance  abuse  advisory
    49            council.
    50    There   is  hereby  created  the  assisted  outpatient  treatment  for
    51  substance abuse advisory council.  (a) The council shall consist of: the
    52  commissioner, or his or her designee; the commissioner of mental health,
    53  or his or her designee; the commissioner of health, or his or her desig-
    54  nee; and fourteen members appointed by the  governor  by  and  with  the
    55  advice  and  consent  of the senate. The governor shall designate one of
    56  the appointed members of the council as chair, who shall serve  as  such

        A. 3745                             7
     1  for a three year term. Membership shall be representative of the public,
     2  shall  have  broad  programmatic  and  geographic  representation, shall
     3  include both not-for-profit and proprietary providers of substance abuse
     4  services, and shall include:
     5    (1)  Five consumer representatives, including persons who are recover-
     6  ing from substance use disorders,  their  family  members,  and  patient
     7  advocates.
     8    (2)  Five  representatives  of  providers  of services to persons with
     9  substance use disorders, including but not limited to representatives of
    10  free standing substance abuse facilities, general hospitals, residential
    11  facilities for persons who abuse or are dependent upon  opioids,  metha-
    12  done  maintenance  programs,  and  outpatient facilities for persons who
    13  abuse or are dependent on opioids. Of these appointments, at  least  one
    14  representative must be a physician.
    15    (3)  Four  representatives  of law enforcement, local governments, and
    16  public and private payors of alcoholism substance abuse treatment.
    17    (b) Members shall be appointed for  terms  of  three  years,  provided
    18  however,  that  of  the  members  first  appointed,  one-third  shall be
    19  appointed for one year terms and one-third shall be  appointed  for  two
    20  year  terms.  Vacancies  shall  be filled in the same manner as original
    21  appointments for the remainder of any unexpired term.
    22    (c) The council shall meet at the request of its chair or the  commis-
    23  sioner,  but  no  less  frequently than four times in each full calendar
    24  year.
    25    (d) The council shall  provide  recommendations  to  the  commissioner
    26  regarding  policies,  rules  and  regulations necessary to implement the
    27  assisted outpatient treatment for substance abuse program  according  to
    28  this article.
    29    § 2. This act shall take effect on the one hundred twentieth day after
    30  it shall have become a law; provided, however, that effective immediate-
    31  ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
    32  necessary for the implementation of this act on its effective  date  are
    33  authorized  and  directed  to  be  made  and completed on or before such
    34  effective date.
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