Bill Text: NY S04728 | 2019-2020 | General Assembly | Introduced


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

Spectrum: Moderate Partisan Bill (Republican 15-3)

Status: (Introduced) 2019-03-22 - REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES [S04728 Detail]

Download: New_York-2019-S04728-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4728
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 22, 2019
                                       ___________
        Introduced  by  Sens.  HELMING, ADDABBO, AKSHAR, AMEDORE, BOYLE, FELDER,
          FUNKE, GALLIVAN, GRIFFO, LANZA, LITTLE, O'MARA, RANZENHOFER,  RITCHIE,
          ROBACH,  SERINO,  SEWARD,  STAVISKY -- read twice and ordered printed,
          and when printed to be committed to the Committee on Mental Health and
          Developmental Disabilities
        AN ACT to amend the mental  hygiene  law  and  the  correction  law,  in
          relation  to  enhancing the assisted outpatient treatment program; and
          to amend Kendra's Law, in relation to making  the  provisions  thereof
          permanent
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     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;
    18    (v) that directors of community services establish procedures  [which]
    19  that  provide  that  reports  of  persons who may be in need of assisted
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01829-02-9

        S. 4728                             2
     1  outpatient treatment are appropriately investigated in a timely  manner;
     2  [and]
     3    (vi)  that  assisted  outpatient treatment services are delivered in a
     4  timely manner[.];
     5    (vii) that, prior to the expiration of assisted  outpatient  treatment
     6  orders,  the  clinical  needs  of  assisted  outpatients  are adequately
     7  reviewed in determining the need  to  petition  for  continued  assisted
     8  outpatient treatment pursuant to subdivision (m) of section 9.60 of this
     9  title;
    10    (viii)  that  the appropriate director is determined for each assisted
    11  outpatient, pursuant to subdivisions (k) and (l) of section 9.60 of this
    12  title; and
    13    (ix) that the office fulfills its duties pursuant to  subdivision  (t)
    14  of section 9.60 of this title to meet local needs for training of judges
    15  and court personnel.
    16    §  2.  Subdivision  (f)  of  section 7.17 of the mental hygiene law is
    17  amended by adding a new paragraph 5 to read as follows:
    18    (5) The commissioner shall develop  an  educational  pamphlet  on  the
    19  process  of  petitioning  for  assisted outpatient treatment for dissem-
    20  ination to individuals seeking to submit reports of persons who  may  be
    21  in  need  of  assisted  outpatient treatment, and individuals seeking to
    22  file a petition pursuant to subparagraph (i) or (ii) of paragraph one of
    23  subdivision (f) of section 9.60 of this title. Such pamphlet  shall  set
    24  forth,  in  plain  language: the criteria for assisted outpatient treat-
    25  ment, resources available to such individuals, the  responsibilities  of
    26  program  coordinators  and directors of community services, a summary of
    27  current law, the process for petitioning for continued  assisted  outpa-
    28  tient  treatment, and other such information the commissioner determines
    29  to be pertinent.
    30    § 3.  Subdivision (b) of section 9.47 of the mental  hygiene  law,  as
    31  amended  by chapter 158 of the laws of 2005, paragraphs 5 and 6 as added
    32  and paragraph 7 as renumbered by chapter 1  of  the  laws  of  2013,  is
    33  amended to read as follows:
    34    (b) All directors of community services shall be responsible for:
    35    (1) receiving reports of persons who may be in need of assisted outpa-
    36  tient treatment pursuant to section 9.60 of this article and documenting
    37  the receipt date of such reports;
    38    (2) conducting timely investigations of such reports received pursuant
    39  to  paragraph  one of this subdivision and providing written notice upon
    40  the completion of investigations to reporting persons and program  coor-
    41  dinators,  appointed  by the commissioner [of mental health] pursuant to
    42  subdivision (f) of section 7.17  of  this  title,  and  documenting  the
    43  initiation  and completion dates of such investigations and the disposi-
    44  tions;
    45    (3) filing of petitions for assisted outpatient treatment pursuant  to
    46  [paragraph] subparagraph (vii) of paragraph one of subdivision [(e)] (f)
    47  of  section  9.60  of  this article, and documenting the petition filing
    48  [date] dates and the [date] dates of the court [order] orders;
    49    (4) coordinating the timely delivery of court  ordered  services  with
    50  program coordinators and documenting the date assisted outpatients begin
    51  to receive the services mandated in the court order; [and]
    52    (5)  ensuring  evaluation  of the need for ongoing assisted outpatient
    53  treatment pursuant to subdivision [(k)] (m)  of  section  9.60  of  this
    54  article  prior  to  the  expiration of any assisted outpatient treatment
    55  order;

        S. 4728                             3
     1    (6) if he or she has been  ordered  to  provide  for  or  arrange  for
     2  assisted  outpatient treatment pursuant to paragraph five of subdivision
     3  [(j)] (k) of section 9.60 of this  article  or  became  the  appropriate
     4  director  pursuant  to this paragraph or subdivision (c) of section 9.48
     5  of this article, notifying the director of community services of the new
     6  county  of  residence  when  he  or  she  has  reason to believe that an
     7  assisted outpatient has or will change his or her  county  of  residence
     8  during the pendency of an assisted outpatient treatment order. Upon such
     9  change  of  residence, the director of the new county of residence shall
    10  become the appropriate director, as such term is defined in section 9.60
    11  of this article; [and]
    12    (7) notifying program coordinators when assisted outpatients cannot be
    13  located after reasonable efforts or are believed to have taken residence
    14  outside of the local governmental unit served; and
    15    (8) reporting on a quarterly basis to program coordinators the  infor-
    16  mation collected pursuant to this subdivision.
    17    § 4.  Paragraphs (viii) and (ix) of subdivision (b) of section 9.48 of
    18  the  mental hygiene law are renumbered paragraphs (ix) and (x) and a new
    19  paragraph (viii) is added to read as follows:
    20    (viii) an account of any court order  expiration,  including  but  not
    21  limited  to  the  director's determination as to whether to petition for
    22  continued assisted outpatient treatment, pursuant  to  section  9.60  of
    23  this  article,  the basis for such determination, and the disposition of
    24  any such petition;
    25    § 5. Section 9.60 of the mental hygiene law, as amended by chapter 158
    26  of the laws of 2005, paragraph  1  of  subdivision  (a)  as  amended  by
    27  section  1  of part E of chapter 111 of the laws of 2010, paragraph 3 of
    28  subdivision (a), paragraphs 2 and 5 of subdivision (j), and subdivisions
    29  (k) and (n) as amended by chapter 1 of the laws of 2013, paragraph 5  of
    30  subdivision  (c) as amended by chapter 137 of the laws of 2005 and para-
    31  graph 4 of subdivision (e) as amended by chapter  382  of  the  laws  of
    32  2015, is amended to read as follows:
    33  § 9.60 Assisted outpatient treatment.
    34    (a)  Definitions.  For  purposes  of this section, the following defi-
    35  nitions shall apply:
    36    (1) "assisted outpatient treatment" shall mean  categories  of  outpa-
    37  tient  services  [which] that have been ordered by the court pursuant to
    38  this section.  Such treatment shall include case management services  or
    39  assertive  community  treatment  team  services  to provide care coordi-
    40  nation, and  may  also  include  any  of  the  following  categories  of
    41  services: medication support; medication education or symptom management
    42  education;  periodic  blood  tests or urinalysis to determine compliance
    43  with prescribed medications; individual or group therapy; day or partial
    44  day programming  activities;  educational  and  vocational  training  or
    45  activities;  appointment  of  a  representative payee or other financial
    46  management services, subject to final approval of  the  Social  Security
    47  Administration,  where  applicable; alcohol or substance abuse treatment
    48  and counseling and periodic or random tests for the presence of  alcohol
    49  or  illegal  drugs  for  persons  with a history of alcohol or substance
    50  abuse; supervision of living arrangements; and any other services within
    51  a local services plan developed pursuant to article  forty-one  of  this
    52  chapter,  clinical  or  non-clinical,  prescribed  to treat the person's
    53  mental illness and to assist the person in living and functioning in the
    54  community, or to attempt to prevent a relapse or deterioration that  may
    55  reasonably be predicted to result in attempted suicide, serious physical
    56  harm to any person or the need for hospitalization.

        S. 4728                             4
     1    (2)  "director"  shall  mean  the  director of community services of a
     2  local governmental unit, or the director of a hospital licensed or oper-
     3  ated by the office of mental health which operates, directs  and  super-
     4  vises an assisted outpatient treatment program.
     5    (3)  "director  of  community  services" and "local governmental unit"
     6  shall have the same meanings as provided in article  forty-one  of  this
     7  chapter. The "appropriate director" shall mean the director of community
     8  services of the county where the assisted outpatient resides, even if it
     9  is  a  different  county  than  the county where the assisted outpatient
    10  treatment order was originally issued.
    11    (4) "assisted outpatient treatment program" shall  mean  a  system  to
    12  arrange  for  and coordinate the provision of assisted outpatient treat-
    13  ment, to monitor treatment compliance by assisted outpatients, to evalu-
    14  ate the condition or needs of assisted outpatients, to take  appropriate
    15  steps to address the needs of such individuals, and to ensure compliance
    16  with court orders.
    17    (5) "assisted outpatient" shall mean the person under a court order to
    18  receive assisted outpatient treatment.
    19    (6)  "subject  of the petition" or "subject" shall mean the person who
    20  is alleged in a petition, filed  pursuant  to  the  provisions  of  this
    21  section, to meet the criteria for assisted outpatient treatment.
    22    (7)  "correctional  facility"  and "local correctional facility" shall
    23  have the same meanings as provided in section two of the correction law.
    24    (8) "health care proxy" and "health care agent" shall  have  the  same
    25  meanings as provided in article twenty-nine-C of the public health law.
    26    (9)  "program  coordinator"  shall mean an individual appointed by the
    27  commissioner [of mental health], pursuant to subdivision (f) of  section
    28  7.17  of this chapter, who is responsible for the oversight and monitor-
    29  ing of assisted outpatient treatment programs.
    30    (b) Programs. The director of community services of each local govern-
    31  mental unit shall operate, direct and supervise an  assisted  outpatient
    32  treatment  program.  The  director of a hospital licensed or operated by
    33  the office [of mental health]  may  operate,  direct  and  supervise  an
    34  assisted  outpatient treatment program, upon approval by the commission-
    35  er. Directors of community services shall be permitted  to  satisfy  the
    36  provisions  of  this subdivision through the operation of joint assisted
    37  outpatient treatment programs. Nothing  in  this  subdivision  shall  be
    38  interpreted  to  preclude  the  combination  or  coordination of efforts
    39  between and among local governmental units and  hospitals  in  providing
    40  and coordinating assisted outpatient treatment.
    41    (c)  Criteria.  A person may be ordered to receive assisted outpatient
    42  treatment if the court finds that such person:
    43    (1) is eighteen years of age or older; and
    44    (2) is suffering from a mental illness; and
    45    (3) is unlikely to survive safely  in  the  community  without  super-
    46  vision, based on a clinical determination; and
    47    (4)  has  a  history  of  lack of compliance with treatment for mental
    48  illness that has:
    49    (i) [prior to the filing of the petition,] at least twice  within  the
    50  [last]  thirty-six  months  prior  to  the filing of the petition been a
    51  significant factor in necessitating hospitalization in  a  hospital,  or
    52  receipt  of  services  in  a  forensic  or other mental health unit of a
    53  correctional facility or a local correctional facility[, not including];
    54  provided that such thirty-six month period  shall  be  extended  by  the
    55  length  of  any current period[, or period ending] of hospitalization or
    56  incarceration, and any such  period  that  ended  within  the  last  six

        S. 4728                             5
     1  months[,  during  which the person was or is hospitalized or incarcerat-
     2  ed]; or
     3    (ii)  within  forty-eight  months prior to the filing of the petition,
     4  resulted in one or more acts of serious violent behavior toward self  or
     5  others  or  threats of, or attempts at, serious physical harm to self or
     6  others [within the last forty-eight  months,  not  including];  provided
     7  that  such  forty-eight  month period shall be extended by the length of
     8  any current period[, or period ending] of hospitalization or  incarcera-
     9  tion,  and  any  such  period that ended within the last six months[, in
    10  which the person was or is hospitalized or incarcerated]; and
    11    (5) is, as a result of his or her mental illness, unlikely  to  volun-
    12  tarily  participate in outpatient treatment that would enable him or her
    13  to live safely in the community; and
    14    (6) in view of his or her treatment history and current  behavior,  is
    15  in  need  of assisted outpatient treatment in order to prevent a relapse
    16  or deterioration which would be likely to result in serious harm to  the
    17  person or others as defined in section 9.01 of this article; and
    18    (7) is likely to benefit from assisted outpatient treatment.
    19    (d) Health care proxy. Nothing in this section shall preclude a person
    20  with  a  health  care proxy from being subject to a petition pursuant to
    21  this chapter and consistent with article  twenty-nine-C  of  the  public
    22  health law.
    23    (e)  Investigation of reports. The commissioner shall promulgate regu-
    24  lations establishing a procedure to ensure that reports of a person  who
    25  may  be  in  need  of  assisted  outpatient  treatment,  including those
    26  received from family and community members of such person, are  investi-
    27  gated in a timely manner and, where appropriate, result in the filing of
    28  petitions for assisted outpatient treatment.
    29    (f)  Petition  to  the  court. (1) A petition for an order authorizing
    30  assisted outpatient treatment may be filed  in  the  supreme  or  county
    31  court  in  the county in which the subject of the petition is present or
    32  reasonably believed to  be  present.    When  a  director  of  community
    33  services  has  reason to believe that an assisted outpatient has changed
    34  his or her county of residence, future petitions and applications  under
    35  this  section  may  be  filed  in the supreme or county court in the new
    36  county of residence, which shall have concurrent jurisdiction  with  the
    37  court that initially ordered such treatment. Such petition may be initi-
    38  ated only by the following persons:
    39    (i) any person eighteen years of age or older with whom the subject of
    40  the petition resides; or
    41    (ii)  the  parent,  spouse, sibling eighteen years of age or older, or
    42  child eighteen years of age or older of the subject of the petition; or
    43    (iii) the director of a hospital in which the subject of the  petition
    44  is  hospitalized,  or  pursuant  to  section  four  hundred  four of the
    45  correction law; or
    46    (iv) the director of any public or charitable organization, agency  or
    47  home  providing mental health services to the subject of the petition or
    48  in whose institution the subject of the petition resides; or
    49    (v) a qualified psychiatrist who is either supervising  the  treatment
    50  of or treating the subject of the petition for a mental illness; or
    51    (vi)  a  psychologist, licensed pursuant to article one hundred fifty-
    52  three of the education law, or a social  worker,  licensed  pursuant  to
    53  article one hundred fifty-four of the education law, who is treating the
    54  subject of the petition for a mental illness; or
    55    (vii)  the  director of community services, or his or her designee, or
    56  the social services official, as defined in the social services law,  of

        S. 4728                             6
     1  the  city  or  county in which the subject of the petition is present or
     2  reasonably believed to be present; or
     3    (viii) a parole officer or probation officer assigned to supervise the
     4  subject of the petition[.]; or
     5    (ix)  a  physician licensed pursuant to article one hundred thirty-one
     6  of the education law, who is treating the subject of the petition, or  a
     7  certified  nurse practitioner licensed and certified pursuant to article
     8  one hundred thirty-nine of  the  education  law,  who  is  treating  the
     9  subject of the petition; or
    10    (x)  the director of any facility which is primarily providing shelter
    11  to homeless individuals; or
    12    (xi) the director of the hospital or the superintendent of  a  correc-
    13  tional  facility  in  which  the  subject of the petition is imprisoned,
    14  pursuant to section four hundred four of the correction law.
    15    (2) The commissioner shall promulgate regulations  pursuant  to  which
    16  persons initiating a petition, pursuant to subparagraphs (i) and (ii) of
    17  paragraph one of this subdivision, may receive assistance in filing such
    18  petitions,  where appropriate, as determined pursuant to subdivision (e)
    19  of this section.
    20    (3) The petition shall state:
    21    (i) each of the criteria for  assisted  outpatient  treatment  as  set
    22  forth in subdivision (c) of this section;
    23    (ii)  facts  which support the petitioner's belief that the subject of
    24  the petition meets each criterion, provided  that  the  hearing  on  the
    25  petition need not be limited to the stated facts; and
    26    (iii)  that  the  subject of the petition is present, or is reasonably
    27  believed to be present, within the county where such petition is filed.
    28    [(3)] (4) The petition shall be accompanied by an affirmation or affi-
    29  davit of a physician, who shall not be the petitioner, stating that such
    30  physician is willing and able to testify at the hearing on the  petition
    31  and that either [that]:
    32    (i) such physician has personally examined the subject of the petition
    33  no  more  than  ten  days prior to the submission of the petition[,] and
    34  recommends assisted outpatient treatment for the subject  of  the  peti-
    35  tion[,  and  is  willing and able to testify at the hearing on the peti-
    36  tion]; or
    37    (ii) no more than ten days prior to the filing of the  petition,  such
    38  physician  or  his or her designee has made appropriate attempts but has
    39  not been successful in eliciting the cooperation of the subject  of  the
    40  petition  to  submit  to  an  examination,  such physician has reason to
    41  suspect that the subject of the petition meets the criteria for assisted
    42  outpatient treatment, and such physician is willing and able to  examine
    43  the subject of the petition [and testify at the hearing on the petition]
    44  prior to providing testimony.
    45    [(4)]  (5) In counties with a population of less than eighty thousand,
    46  the affirmation or affidavit required by paragraph [three] four of  this
    47  subdivision may be made by a physician who is an employee of the office.
    48  The  office  is authorized and directed to make available, at no cost to
    49  the county, a qualified physician for the purpose of making such  affir-
    50  mation or affidavit consistent with the provisions of such paragraph.
    51    [(f)]  (g)  Service.  The petitioner shall cause written notice of the
    52  petition to be given to the subject of the petition and a  copy  thereof
    53  to  be given personally or by mail to the persons listed in section 9.29
    54  of this article, the mental hygiene legal service, the health care agent
    55  if any such agent is known to the petitioner,  the  appropriate  program

        S. 4728                             7
     1  coordinator, and the appropriate director of community services, if such
     2  director is not the petitioner.
     3    [(g)] (h) Right to counsel. The subject of the petition shall have the
     4  right to be represented by the mental hygiene legal service, or private-
     5  ly  financed counsel, at all stages of a proceeding commenced under this
     6  section.
     7    [(h)] (i) Hearing. (1) Upon receipt of the petition, the  court  shall
     8  fix  the date for a hearing. Such date shall be no later than three days
     9  from the date such petition is received by the court,  excluding  Satur-
    10  days,  Sundays  and  holidays.  Adjournments shall be permitted only for
    11  good cause shown. In granting adjournments, the court shall consider the
    12  need for further examination by a physician or  the  potential  need  to
    13  provide  assisted  outpatient  treatment  expeditiously. The court shall
    14  cause the subject of the petition, any  other  person  receiving  notice
    15  pursuant  to  subdivision [(f)] (g) of this section, the petitioner, the
    16  physician whose affirmation or affidavit accompanied the  petition,  and
    17  such  other  persons  as  the  court may determine to be advised of such
    18  date. Upon such date, or upon such other date to  which  the  proceeding
    19  may  be  adjourned,  the court shall hear testimony and, if it be deemed
    20  advisable and the subject of the  petition  is  available,  examine  the
    21  subject  of the petition in or out of court. If the subject of the peti-
    22  tion does not appear at the hearing, and appropriate attempts to  elicit
    23  the  attendance  of  the  subject have failed, the court may conduct the
    24  hearing in the subject's absence. In such  case,  the  court  shall  set
    25  forth  the factual basis for conducting the hearing without the presence
    26  of the subject of the petition.
    27    (2) The court shall not order assisted outpatient treatment unless  an
    28  examining  physician,  who  recommends assisted outpatient treatment and
    29  has personally examined the subject of the petition  no  more  than  ten
    30  days before the filing of the petition, testifies in person at the hear-
    31  ing.  Such  physician  shall state the facts and clinical determinations
    32  which support the allegation that the subject of the petition meets each
    33  of the criteria for assisted outpatient  treatment;  provided  that  the
    34  parties may stipulate, upon mutual consent, that such physician need not
    35  testify.
    36    (3)  If  the  subject  of the petition has refused to be examined by a
    37  physician, the court may request the subject to consent to  an  examina-
    38  tion  by a physician appointed by the court. If the subject of the peti-
    39  tion does not consent and the court finds reasonable  cause  to  believe
    40  that the allegations in the petition are true, the court may order peace
    41  officers,  acting  pursuant  to their special duties, or police officers
    42  who are members of an authorized police department or  force,  or  of  a
    43  sheriff's  department  to  take the subject of the petition into custody
    44  and transport him or her to a hospital for examination by  a  physician.
    45  Retention  of  the  subject  of  the petition under such order shall not
    46  exceed twenty-four hours. The examination of the subject of the petition
    47  may be performed by the physician whose affirmation or affidavit  accom-
    48  panied  the  petition  pursuant to paragraph [three] four of subdivision
    49  [(e)] (f) of this section, if  such  physician  is  privileged  by  such
    50  hospital  or  otherwise  authorized  by  such hospital to do so. If such
    51  examination is performed by another physician, the  examining  physician
    52  may  consult  with the physician whose affirmation or affidavit accompa-
    53  nied the petition as to whether  the  subject  meets  the  criteria  for
    54  assisted outpatient treatment.
    55    (4) A physician who testifies pursuant to paragraph two of this subdi-
    56  vision  shall  state:  (i) the facts [which] and clinical determinations

        S. 4728                             8
     1  that support the allegation that the subject meets each of the  criteria
     2  for  assisted outpatient treatment, (ii) that the treatment is the least
     3  restrictive  alternative,  (iii)  the  recommended  assisted  outpatient
     4  treatment,  and  (iv)  the rationale for the recommended assisted outpa-
     5  tient  treatment.  If  the  recommended  assisted  outpatient  treatment
     6  includes medication, such physician's testimony shall describe the types
     7  or  classes of medication which should be authorized, shall describe the
     8  beneficial and detrimental physical and mental effects of  such  medica-
     9  tion,  and shall recommend whether such medication should be self-admin-
    10  istered or administered by authorized personnel.
    11    (5) The subject of the petition shall be afforded  an  opportunity  to
    12  present  evidence, to call witnesses on his or her behalf, and to cross-
    13  examine adverse witnesses.
    14    [(i)] (j) Written treatment  plan.  (1)  The  court  shall  not  order
    15  assisted outpatient treatment unless a physician appointed by the appro-
    16  priate  director,  in  consultation  with  such  director,  develops and
    17  provides to the court a proposed written  treatment  plan.  The  written
    18  treatment  plan  shall  include  case  management  services or assertive
    19  community treatment team services  to  provide  care  coordination.  The
    20  written treatment plan also shall include all categories of services, as
    21  set  forth  in  paragraph  one of subdivision (a) of this section, which
    22  such physician recommends that the subject of the petition receive.  All
    23  service  providers  shall  be  notified regarding their inclusion in the
    24  written treatment plan. If the written treatment plan  includes  medica-
    25  tion, it shall state whether such medication should be self-administered
    26  or  administered  by  authorized  personnel,  and shall specify type and
    27  dosage range of medication most likely to provide  maximum  benefit  for
    28  the subject. If the written treatment plan includes alcohol or substance
    29  abuse  counseling  and  treatment,  such  plan  may  include a provision
    30  requiring relevant testing for  either  alcohol  or  illegal  substances
    31  provided  the  physician's  clinical  basis  for  recommending such plan
    32  provides sufficient facts for the court to find (i) that such person has
    33  a history of alcohol or substance abuse that is  clinically  related  to
    34  the mental illness; and (ii) that such testing is necessary to prevent a
    35  relapse or deterioration which would be likely to result in serious harm
    36  to  the  person  or others. If a director is the petitioner, the written
    37  treatment plan shall be provided to the court no later than the date  of
    38  the  hearing  on  the petition. If a person other than a director is the
    39  petitioner, such plan shall be provided to the court no later  than  the
    40  date  set  by the court pursuant to paragraph three of subdivision [(j)]
    41  (k) of this section.
    42    (2) The physician appointed to  develop  the  written  treatment  plan
    43  shall  provide  the  following  persons  with an opportunity to actively
    44  participate in the development of such plan: the subject  of  the  peti-
    45  tion;  the  treating  physician,  if  any;  and  upon the request of the
    46  subject of the  petition,  an  individual  significant  to  the  subject
    47  including  any  relative, close friend or individual otherwise concerned
    48  with the welfare of the subject. The appointed physician  shall  make  a
    49  reasonable  effort to gather relevant information for the development of
    50  the treatment plan from the subject of the petition's family  member  or
    51  members, or his or her significant other. If the subject of the petition
    52  has executed a health care proxy, the appointed physician shall consider
    53  any  directions  included in such proxy in developing the written treat-
    54  ment plan.
    55    (3) The court shall not order assisted outpatient treatment  unless  a
    56  physician  appearing  on  behalf  of a director testifies to explain the

        S. 4728                             9
     1  written proposed treatment plan; provided that the  parties  may  stipu-
     2  late,  upon  mutual  consent, that such physician need not testify. Such
     3  physician shall state the categories of  assisted  outpatient  treatment
     4  recommended, the rationale for each such category, facts which establish
     5  that  such  treatment  is the least restrictive alternative, and, if the
     6  recommended assisted outpatient treatment plan includes medication, such
     7  physician shall state the types or classes  of  medication  recommended,
     8  the beneficial and detrimental physical and mental effects of such medi-
     9  cation,  and  whether  such  medication  should  be self-administered or
    10  administered by an authorized professional. If the subject of the  peti-
    11  tion  has  executed  a health care proxy, such physician shall state the
    12  consideration given to any directions included in such proxy in develop-
    13  ing the written treatment plan. If a director is the petitioner,  testi-
    14  mony  pursuant  to  this  paragraph shall be given at the hearing on the
    15  petition. If a person other than a  director  is  the  petitioner,  such
    16  testimony  shall be given on the date set by the court pursuant to para-
    17  graph three of subdivision [(j)] (k) of this section.
    18    [(j)] (k) Disposition. (1) If after hearing all relevant evidence, the
    19  court does not find by clear and convincing evidence that the subject of
    20  the petition meets the criteria for assisted outpatient  treatment,  the
    21  court shall dismiss the petition.
    22    (2)  If  after hearing all relevant evidence, the court finds by clear
    23  and convincing evidence that the  subject  of  the  petition  meets  the
    24  criteria  for assisted outpatient treatment, and there is no appropriate
    25  and feasible less restrictive  alternative,  the  court  may  order  the
    26  subject  to  receive assisted outpatient treatment for an initial period
    27  not to exceed one year. In fashioning the order, the court shall specif-
    28  ically make findings by clear and convincing evidence that the  proposed
    29  treatment  is  the  least restrictive treatment appropriate and feasible
    30  for the subject. The order shall state an assisted outpatient  treatment
    31  plan,  which  shall include all categories of assisted outpatient treat-
    32  ment, as set forth in paragraph one of subdivision (a) of this  section,
    33  which  the  assisted outpatient is to receive, but shall not include any
    34  such category that has not been recommended in [both] the proposed writ-
    35  ten treatment plan and [the] in any  testimony  provided  to  the  court
    36  pursuant to subdivision [(i)] (j) of this section.
    37    (3)  If  after hearing all relevant evidence presented by a petitioner
    38  who is not a director, the court finds by clear and convincing  evidence
    39  that  the subject of the petition meets the criteria for assisted outpa-
    40  tient treatment, and the court has yet to be  provided  with  a  written
    41  proposed  treatment plan and testimony pursuant to subdivision [(i)] (j)
    42  of this section, the court  shall  order  the  appropriate  director  to
    43  provide  the  court with such plan and testimony no later than the third
    44  day, excluding Saturdays, Sundays and  holidays,  immediately  following
    45  the  date  of  such  order; provided that the parties may stipulate upon
    46  mutual consent that such testimony need not be provided.  Upon receiving
    47  such plan and any required  testimony,  the  court  may  order  assisted
    48  outpatient treatment as provided in paragraph two of this subdivision.
    49    (4)  A  court  may  order  the patient to self-administer psychotropic
    50  drugs or accept the administration of such drugs by authorized personnel
    51  as part of an assisted outpatient  treatment  program.  Such  order  may
    52  specify  the  type  and dosage range of such psychotropic drugs and such
    53  order shall be effective for the duration of  such  assisted  outpatient
    54  treatment.
    55    (5)  If  the petitioner is the director of a hospital that operates an
    56  assisted outpatient treatment program, the court order shall direct  the

        S. 4728                            10
     1  hospital  director  to provide or arrange for all categories of assisted
     2  outpatient treatment for the assisted outpatient throughout  the  period
     3  of the order. In all other instances, the order shall require the appro-
     4  priate  director, as that term is defined in this section, to provide or
     5  arrange for all categories of  assisted  outpatient  treatment  for  the
     6  assisted outpatient throughout the period of the order. Orders issued on
     7  or  after  the effective date of the chapter of the laws of two thousand
     8  nineteen that amended this section shall require the appropriate  direc-
     9  tor "as determined by the program coordinator" to provide or arrange for
    10  all  categories of assisted outpatient treatment for the assisted outpa-
    11  tient throughout the period of the order.
    12    (6) The director shall cause a copy of any court order issued pursuant
    13  to this section to be served personally, or by mail, facsimile or  elec-
    14  tronic  means,  upon  the  assisted outpatient, the mental hygiene legal
    15  service or anyone  acting  on  the  assisted  outpatient's  behalf,  the
    16  original  petitioner, identified service providers, and all others enti-
    17  tled to notice under subdivision [(f)] (g) of this section.
    18    [(k)] (l) Relocation of assisted outpatients. The  commissioner  shall
    19  promulgate  regulations  requiring that, during the period of the order,
    20  an assisted outpatient and any other appropriate  persons  shall  notify
    21  the  program coordinator within a reasonable time prior to such assisted
    22  outpatient relocating within the state of New York to an area not served
    23  by the director who has been directed to  provide  or  arrange  for  the
    24  assisted outpatient treatment. Upon receiving notification of such relo-
    25  cation,  the  program  coordinator shall redetermine who the appropriate
    26  director shall be and cause a copy of the court order and treatment plan
    27  to be transmitted to such director.
    28    (m) Petition for [additional  periods  of]  continued  treatment.  (1)
    29  [Prior]  Within thirty days prior to the expiration of an order pursuant
    30  to this section, the  appropriate  director  shall  review  whether  the
    31  assisted  outpatient  continues to meet the criteria for assisted outpa-
    32  tient treatment. [If, as documented in the petition, the director deter-
    33  mines that such criteria continue to be  met  or  has  made  appropriate
    34  attempts  to,  but has not been successful in eliciting, the cooperation
    35  of the subject to submit to an examination, within thirty days prior  to
    36  the expiration of an order of assisted outpatient treatment, such direc-
    37  tor may petition the court to order continued assisted outpatient treat-
    38  ment  pursuant  to  paragraph  two of this subdivision. Upon determining
    39  whether such criteria continue to be met, such director shall notify the
    40  program coordinator in writing as to whether a  petition  for  continued
    41  assisted  outpatient  treatment is warranted and whether such a petition
    42  was or will be filed.] Upon determining that one or more of such  crite-
    43  ria  are no longer met, such director shall notify the program coordina-
    44  tor in writing that a petition for continued assisted outpatient  treat-
    45  ment  is not warranted.  Upon determining that such criteria continue to
    46  be met, he or she shall petition the court to order  continued  assisted
    47  outpatient  treatment for a period not to exceed one year from the expi-
    48  ration date of the current order. If the  court's  disposition  of  such
    49  petition  does  not  occur  prior  to the expiration date of the current
    50  order, the current order shall remain in effect until such  disposition.
    51  The  procedures  for  obtaining  any  order pursuant to this subdivision
    52  shall be in accordance with the provisions of the foregoing  subdivision
    53  of  this  section; provided that the time restrictions included in para-
    54  graph four of subdivision (c) of this section shall not  be  applicable.
    55  The  notice  provisions set forth in paragraph six of subdivision (k) of
    56  this section shall be applicable. Any  court  order  requiring  periodic

        S. 4728                            11
     1  blood  tests  or urinalysis for the presence of alcohol or illegal drugs
     2  shall be subject to review after six months by the physician who  devel-
     3  oped  the  written treatment plan or another physician designated by the
     4  director, and such physician shall be authorized to terminate such blood
     5  tests or urinalysis without further action by the court.
     6    (2) Within thirty days prior to the expiration of an order of assisted
     7  outpatient  treatment,  [the  appropriate director or] the current peti-
     8  tioner, if the current petition was filed pursuant to  subparagraph  (i)
     9  or  (ii)  of paragraph one of subdivision [(e)] (f) of this section, and
    10  the current petitioner retains his or her original  status  pursuant  to
    11  the  applicable  subparagraph, may petition the court to order continued
    12  assisted outpatient treatment for a period not to exceed one  year  from
    13  the  expiration date of the current order. If the court's disposition of
    14  such petition does not occur prior to the expiration date of the current
    15  order, the current order shall remain in effect until such  disposition.
    16  The  procedures  for  obtaining  any  order pursuant to this subdivision
    17  shall be in accordance with the provisions of the foregoing subdivisions
    18  of this section; provided that the time restrictions included  in  para-
    19  graph  four  of subdivision (c) of this section shall not be applicable.
    20  The notice provisions set forth in paragraph six  of  subdivision  [(j)]
    21  (k) of this section shall be applicable. Any court order requiring peri-
    22  odic  blood  tests  or urinalysis for the presence of alcohol or illegal
    23  drugs shall be subject to review after six months by the  physician  who
    24  developed  the written treatment plan or another physician designated by
    25  the director, and such physician shall be authorized to  terminate  such
    26  blood tests or urinalysis without further action by the court.
    27    [(l)]  (3)  If  neither the appropriate director nor the current peti-
    28  tioner petition for continued assisted outpatient treatment pursuant  to
    29  this  paragraph  and  the  order  of the court expires, any other person
    30  authorized to petition pursuant to paragraph one of subdivision  (f)  of
    31  this section may bring a new petition for assisted outpatient treatment.
    32  If  such new petition is filed less than sixty days after the expiration
    33  of such order, the time  restrictions  provided  in  paragraph  four  of
    34  subdivision (c) of this section shall not be applicable to the new peti-
    35  tion.
    36    (4)  If, thirty days prior to the expiration of an order, the assisted
    37  outpatient is deemed by the  appropriate  director  to  be  missing  and
    38  thereby  unavailable for evaluation as to whether he or she continues to
    39  meet the criteria for assisted outpatient treatment, such director shall
    40  petition the court to extend the term of the current order  until  sixty
    41  days after such time as the assisted outpatient is located. If the court
    42  grants  the extension, the director shall continue reasonable efforts to
    43  locate the assisted outpatient.  Upon location of  the  assisted  outpa-
    44  tient, the director shall review whether the assisted outpatient contin-
    45  ues  to meet the criteria for assisted outpatient treatment, pursuant to
    46  paragraph two of this subdivision.
    47    (n) Petition for an order to stay, vacate or modify. (1)  In  addition
    48  to  any other right or remedy available by law with respect to the order
    49  for assisted outpatient treatment, the assisted outpatient,  the  mental
    50  hygiene  legal  service,  or  anyone acting on the assisted outpatient's
    51  behalf may petition the court on notice to the  director,  the  original
    52  petitioner,  and  all  others entitled to notice under subdivision [(f)]
    53  (g) of this section to stay, vacate or modify the order.
    54    (2) The appropriate director shall petition  the  court  for  approval
    55  before instituting a proposed material change in the assisted outpatient
    56  treatment  plan,  unless  such  change is authorized by the order of the

        S. 4728                            12
     1  court.  Such petitions to change an assisted outpatient treatment  plan,
     2  as  well  as petitions for continued treatment, may be made to any judge
     3  of the supreme or county courts in the county in which  the  subject  of
     4  the petition is present or reasonably believed to be present. Such peti-
     5  tion  shall  be  filed on notice to all parties entitled to notice under
     6  subdivision [(f)] (g) of this section. Not later than  five  days  after
     7  receiving  such petition, excluding Saturdays, Sundays and holidays, the
     8  court shall hold a  hearing  on  the  petition;  provided  that  if  the
     9  assisted  outpatient  informs  the  court  that  he or she agrees to the
    10  proposed material change, the court may approve such  change  without  a
    11  hearing.  Non-material changes may be instituted by the director without
    12  court approval. For the purposes of this paragraph, a material change is
    13  an addition or deletion of a category of services to or from  a  current
    14  assisted  outpatient  treatment  plan,  or  any  deviation  without  the
    15  assisted outpatient's consent from the terms of a current order relating
    16  to the administration of psychotropic drugs.
    17    [(m)] (o) Appeals. Review of an order issued pursuant to this  section
    18  shall  be  had  in  like  manner  as  specified  in section 9.35 of this
    19  article; provided that notice shall be provided to all parties  entitled
    20  to notice under subdivision (g) of this section.
    21    [(n)]  (p) Failure to comply with assisted outpatient treatment. Where
    22  in the clinical judgment of a physician, (i)  the  assisted  outpatient,
    23  has  failed or refused to comply with the assisted outpatient treatment,
    24  (ii) efforts were made to solicit compliance, and  (iii)  such  assisted
    25  outpatient  may be in need of involuntary admission to a hospital pursu-
    26  ant to section 9.27 of this article or immediate observation,  care  and
    27  treatment  pursuant to section 9.39 or 9.40 of this article, such physi-
    28  cian may request the appropriate director  of  community  services,  the
    29  director's  designee,  or  any  physician  designated by the director of
    30  community services pursuant to section 9.37 of this article,  to  direct
    31  the  removal  of such assisted outpatient to an appropriate hospital for
    32  an examination to determine if such person  has  a  mental  illness  for
    33  which  he  or she is in need of hospitalization is necessary pursuant to
    34  section 9.27, 9.39 or  9.40  of  this  article[.  Furthermore,  if  such
    35  assisted outpatient refuses to take medications as required by the court
    36  order,  or he or she refuses to take, or fails a blood test, urinalysis,
    37  or alcohol or drug test as required by the court order,  such  physician
    38  may consider such refusal or failure when determining whether]; provided
    39  that  if, after efforts to solicit compliance, such physician determines
    40  that the assisted outpatient's  failure  to  comply  with  the  assisted
    41  outpatient  treatment includes a substantial failure to take medication,
    42  pass or submit to blood testing or urinalysis, or receive treatment  for
    43  alcohol or substance abuse, such physician may presume that the assisted
    44  outpatient  is  in need of an examination to determine whether he or she
    45  has a mental illness for which hospitalization is  necessary.  Upon  the
    46  request  of  such  physician,  the  appropriate director, the director's
    47  designee, or any physician designated pursuant to section 9.37  of  this
    48  article,  may  direct  peace  officers, acting pursuant to their special
    49  duties, or police officers who  are  members  of  an  authorized  police
    50  department  or  force  or of a sheriff's department to take the assisted
    51  outpatient into custody and transport him or her to the hospital operat-
    52  ing the assisted outpatient treatment program or to any hospital author-
    53  ized by the director of community services to receive such persons. Such
    54  law enforcement officials shall  carry  out  such  directive.  Upon  the
    55  request  of  such  physician,  the  appropriate director, the director's
    56  designee, or any physician designated pursuant to section 9.37  of  this

        S. 4728                            13
     1  article,  an ambulance service, as defined by subdivision two of section
     2  three thousand one of the public  health  law,  or  an  approved  mobile
     3  crisis outreach team as defined in section 9.58 of this article shall be
     4  authorized  to  take  into  custody and transport any such person to the
     5  hospital operating the assisted outpatient treatment program, or to  any
     6  other  hospital  authorized  by  the  appropriate  director of community
     7  services to receive such persons. Any director of community services, or
     8  designee, shall be authorized to  direct  the  removal  of  an  assisted
     9  outpatient  who is present in his or her county to an appropriate hospi-
    10  tal, in accordance with the provisions of this subdivision, based upon a
    11  determination of the appropriate director of community services  direct-
    12  ing  the  removal  of such assisted outpatient pursuant to this subdivi-
    13  sion. Such person may be retained for observation,  care  and  treatment
    14  and  further  examination in the hospital for up to seventy-two hours to
    15  permit a physician to determine whether such person has a mental illness
    16  and is in need of involuntary care and treatment in a hospital  pursuant
    17  to  the  provisions of this article. Any continued involuntary retention
    18  of the assisted outpatient in such hospital beyond the initial  seventy-
    19  two hour period shall be in accordance with the provisions of this arti-
    20  cle  relating to the involuntary admission and retention of a person. If
    21  at any time during the seventy-two hour period the person is  determined
    22  not  to  meet the involuntary admission and retention provisions of this
    23  article, and does not agree to stay in the hospital as  a  voluntary  or
    24  informal  patient, he or she must be released. Failure to comply with an
    25  order of assisted outpatient treatment shall not be grounds for involun-
    26  tary civil commitment or a finding of contempt of court.
    27    [(o)] (q) Effect of determination that a person is in need of assisted
    28  outpatient treatment. The determination by a court that a person  is  in
    29  need  of  assisted  outpatient  treatment  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    [(p)] (r) False petition. A person making a false statement or provid-
    33  ing  false information or false testimony in a petition or hearing under
    34  this section shall be subject to criminal prosecution pursuant to  arti-
    35  cle  one  hundred  seventy-five  or article two hundred ten of the penal
    36  law.
    37    [(q)] (s) Exception. Nothing in this section  shall  be  construed  to
    38  affect  the  ability of the director of a hospital to receive, admit, or
    39  retain patients who  otherwise  meet  the  provisions  of  this  article
    40  regarding receipt, retention or admission.
    41    [(r)]  (t)  Education and training. (1) The office [of mental health],
    42  in consultation with the office of court administration,  shall  prepare
    43  educational  and  training  materials  on the use of this section, which
    44  shall be made  available  to  local  governmental  units,  providers  of
    45  services,  judges,  court  personnel,  law enforcement officials and the
    46  general public.
    47    (2) The office, in consultation with  the  office  of  court  adminis-
    48  tration,  shall  establish  a mental health training program for supreme
    49  and county court judges and court  personnel,  and  shall  provide  such
    50  training with such frequency and in such locations as may be appropriate
    51  to  meet  statewide needs.  Such training shall focus on the use of this
    52  section and generally address issues  relating  to  mental  illness  and
    53  mental health treatment.
    54    §  6.  Section  29.15 of the mental hygiene law is amended by adding a
    55  new subdivision (o) to read as follows:

        S. 4728                            14
     1    (o) If the director of a department facility  does  not  petition  for
     2  assisted  outpatient  treatment pursuant to section 9.60 of this chapter
     3  upon the discharge of an inpatient admitted pursuant  to  section  9.27,
     4  9.39  or  9.40  of  this  chapter, or upon the expiration of a period of
     5  conditional  release for such inpatient, such director shall report such
     6  discharge or such expiration in writing to  the  director  of  community
     7  services  of  the  local  governmental  unit  in  which the inpatient is
     8  expected to reside.
     9    § 7. Subdivision 3 of section 404 of the correction law, as  added  by
    10  chapter  1  of  the  laws of 2013, is amended and a new subdivision 5 is
    11  added to read as follows:
    12    3. Within a reasonable period prior to discharge of an inmate  commit-
    13  ted  from a [state correctional facility from a] hospital in the depart-
    14  ment of mental hygiene to the community, the director shall ensure  that
    15  a clinical assessment has been completed to determine whether the inmate
    16  meets  the criteria for assisted outpatient treatment pursuant to subdi-
    17  vision (c) of section 9.60 of the mental hygiene law. If, as a result of
    18  such assessment, the director determines  that  the  inmate  meets  such
    19  criteria,  prior  to discharge the director of the hospital shall either
    20  petition for a court order  pursuant  to  section  9.60  of  the  mental
    21  hygiene  law, or report in writing to the director of community services
    22  of the local governmental unit in which the inmate is expected to reside
    23  so that an investigation [may] shall be conducted  pursuant  to  section
    24  9.47 of the mental hygiene law.
    25    5.  Within  a  reasonable  period  prior to release or discharge of an
    26  inmate who is not currently committed to a hospital in the department of
    27  mental hygiene from a state correctional facility to the  community,  if
    28  such  inmate  has  a serious mental illness pursuant to paragraph (e) of
    29  subdivision six of section one hundred thirty-seven of this chapter, the
    30  department shall notify the director of a hospital who shall ensure that
    31  a clinical assessment has been completed to determine whether the inmate
    32  meets the criteria for assisted outpatient treatment pursuant to  subdi-
    33  vision (c) of section 9.60 of the mental hygiene law. If, as a result of
    34  such  assessment,  the  director  determines  that the inmate meets such
    35  criteria, prior to release or discharge, the director  of  the  hospital
    36  shall  either petition for a court order pursuant to section 9.60 of the
    37  mental hygiene law, or report in writing to the  director  of  community
    38  services  of the local governmental unit in which the inmate is expected
    39  to reside so that  an  investigation  shall  be  conducted  pursuant  to
    40  section 9.47 of the mental hygiene law.
    41    §  8.  Section  18  of  chapter  408 of the laws of 1999, constituting
    42  Kendra's Law, as amended by chapter 67 of the laws of 2017,  is  amended
    43  to read as follows:
    44    §  18.  This  act shall take effect immediately, provided that section
    45  fifteen of this act shall take effect April 1, 2000, provided,  further,
    46  that  subdivision (e) of section 9.60 of the mental hygiene law as added
    47  by section six of this act shall be effective 90  days  after  this  act
    48  shall become law[; and that this act shall expire and be deemed repealed
    49  June 30, 2022].
    50    § 9. Severability. If any clause, sentence, paragraph, section or part
    51  of  this act shall be adjudged by any court of competent jurisdiction to
    52  be invalid, and after exhaustion of all  further  judicial  review,  the
    53  judgment  shall  not affect, impair or invalidate the remainder thereof,
    54  but shall be confined in its operation to the  clause,  sentence,  para-
    55  graph, section or part thereof directly involved in the controversy.
    56    § 10.  This act shall take effect immediately.
feedback