STATE OF NEW YORK ________________________________________________________________________ 604--A 2017-2018 Regular Sessions IN ASSEMBLY January 9, 2017 ___________ Introduced by M. of A. GUNTHER, ZEBROWSKI, THIELE, PAULIN, JAFFEE, ENGLEBRIGHT, COOK, WEPRIN, OTIS, STECK, WILLIAMS, CUSICK, MONTESANO, PALUMBO, WALTER, WALLACE, COLTON -- 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, TITONE, WALSH -- read once and referred to the Committee on Mental Health -- recommitted to the Committee on Mental Health in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05836-03-8
A. 604--A 2 1 compliance, or lack of compliance with treatment, to the director of the 2 assisted outpatient treatment program; 3 (v) that directors of community services establish procedures [which] 4 that provide that reports of persons who may be in need of assisted 5 outpatient treatment are appropriately investigated in a timely manner; 6 [and] 7 (vi) that assisted outpatient treatment services are delivered in a 8 timely manner[.]; 9 (vii) that, prior to the expiration of assisted outpatient treatment 10 orders, the clinical needs of assisted outpatients are adequately 11 reviewed in determining the need to petition for continued assisted 12 outpatient treatment pursuant to subdivision (m) of section 9.60 of this 13 title; 14 (viii) that the appropriate director is determined for each assisted 15 outpatient, pursuant to subdivisions (k) and (l) of section 9.60 of this 16 title; and 17 (ix) that the office fulfills its duties pursuant to subdivision (t) 18 of section 9.60 of this title to meet local needs for training of judges 19 and court personnel. 20 § 2. Subdivision (f) of section 7.17 of the mental hygiene law is 21 amended by adding a new paragraph 5 to read as follows: 22 (5) The commissioner shall develop an educational pamphlet on the 23 process of petitioning for assisted outpatient treatment for dissem- 24 ination to individuals seeking to submit reports of persons who may be 25 in need of assisted outpatient treatment, and individuals seeking to 26 file a petition pursuant to subparagraph (i) or (ii) of paragraph one of 27 subdivision (f) of section 9.60 of this title. Such pamphlet shall set 28 forth, in plain language: the criteria for assisted outpatient treat- 29 ment, resources available to such individuals, the responsibilities of 30 program coordinators and directors of community services, a summary of 31 current law, the process for petitioning for continued assisted outpa- 32 tient treatment, and other such information the commissioner determines 33 to be pertinent. 34 § 3. Subdivision (b) of section 9.47 of the mental hygiene law, as 35 amended by chapter 158 of the laws of 2005, paragraphs 5 and 6 as added 36 and paragraph 7 as renumbered by chapter 1 of the laws of 2013, is 37 amended to read as follows: 38 (b) All directors of community services shall be responsible for: 39 (1) receiving reports of persons who may be in need of assisted outpa- 40 tient treatment pursuant to section 9.60 of this article and documenting 41 the receipt date of such reports; 42 (2) conducting timely investigations of such reports received pursuant 43 to paragraph one of this subdivision and providing written notice upon 44 the completion of investigations to reporting persons and program coor- 45 dinators, appointed by the commissioner [of mental health] pursuant to 46 subdivision (f) of section 7.17 of this title, and documenting the 47 initiation and completion dates of such investigations and the disposi- 48 tions; 49 (3) filing of petitions for assisted outpatient treatment pursuant to 50 [paragraph] subparagraph (vii) of paragraph one of subdivision [(e)] (f) 51 of section 9.60 of this article, and documenting the petition filing 52 [date] dates and the [date] dates of the court [order] orders; 53 (4) coordinating the timely delivery of court ordered services with 54 program coordinators and documenting the date assisted outpatients begin 55 to receive the services mandated in the court order; [and]
A. 604--A 3 1 (5) ensuring evaluation of the need for ongoing assisted outpatient 2 treatment pursuant to subdivision [(k)] (m) of section 9.60 of this 3 article prior to the expiration of any assisted outpatient treatment 4 order; 5 (6) if he or she has been ordered to provide for or arrange for 6 assisted outpatient treatment pursuant to paragraph five of subdivision 7 [(j)] (k) of section 9.60 of this article or became the appropriate 8 director pursuant to this paragraph or subdivision (c) of section 9.48 9 of this article, notifying the director of community services of the new 10 county of residence when he or she has reason to believe that an 11 assisted outpatient has or will change his or her county of residence 12 during the pendency of an assisted outpatient treatment order. Upon such 13 change of residence, the director of the new county of residence shall 14 become the appropriate director, as such term is defined in section 9.60 15 of this article; [and] 16 (7) notifying program coordinators when assisted outpatients cannot be 17 located after reasonable efforts or are believed to have taken residence 18 outside of the local governmental unit served; and 19 (8) reporting on a quarterly basis to program coordinators the infor- 20 mation collected pursuant to this subdivision. 21 § 4. Paragraphs (viii) and (ix) of subdivision (b) of section 9.48 of 22 the mental hygiene law are renumbered paragraphs (ix) and (x) and a new 23 paragraph (viii) is added to read as follows: 24 (viii) an account of any court order expiration, including but not 25 limited to the director's determination as to whether to petition for 26 continued assisted outpatient treatment, pursuant to section 9.60 of 27 this article, the basis for such determination, and the disposition of 28 any such petition; 29 § 5. Section 9.60 of the mental hygiene law, as amended by chapter 158 30 of the laws of 2005, paragraph 1 of subdivision (a) as amended by 31 section 1 of part E of chapter 111 of the laws of 2010, paragraph 3 of 32 subdivision (a), paragraphs 2 and 5 of subdivision (j), and subdivisions 33 (k) and (n) as amended by chapter 1 of the laws of 2013, paragraph 5 of 34 subdivision (c) as amended by chapter 137 of the laws of 2005, paragraph 35 4 of subdivision (e) as amended by chapter 382 of the laws of 2015, is 36 amended to read as follows: 37 § 9.60 Assisted outpatient treatment. 38 (a) Definitions. For purposes of this section, the following defi- 39 nitions shall apply: 40 (1) "assisted outpatient treatment" shall mean categories of outpa- 41 tient services [which] that have been ordered by the court pursuant to 42 this section. Such treatment shall include case management services or 43 assertive community treatment team services to provide care coordi- 44 nation, and may also include any of the following categories of 45 services: medication support; medication education or symptom management 46 education; periodic blood tests or urinalysis to determine compliance 47 with prescribed medications; individual or group therapy; day or partial 48 day programming activities; educational and vocational training or 49 activities; appointment of a representative payee or other financial 50 management services, subject to final approval of the Social Security 51 Administration, where applicable; alcohol or substance abuse treatment 52 and counseling and periodic or random tests for the presence of alcohol 53 or illegal drugs for persons with a history of alcohol or substance 54 abuse; supervision of living arrangements; and any other services within 55 a local services plan developed pursuant to article forty-one of this 56 chapter, clinical or non-clinical, prescribed to treat the person's
A. 604--A 4 1 mental illness and to assist the person in living and functioning in the 2 community, or to attempt to prevent a relapse or deterioration that may 3 reasonably be predicted to result in [suicide] serious physical harm to 4 any person or the need for hospitalization. 5 (2) "director" shall mean the director of community services of a 6 local governmental unit, or the director of a hospital licensed or oper- 7 ated by the office of mental health which operates, directs and super- 8 vises an assisted outpatient treatment program. 9 (3) "director of community services" and "local governmental unit" 10 shall have the same meanings as provided in article forty-one of this 11 chapter. The "appropriate director" shall mean the director of community 12 services of the county where the assisted outpatient resides, even if it 13 is a different county than the county where the assisted outpatient 14 treatment order was originally issued. 15 (4) "assisted outpatient treatment program" shall mean a system to 16 arrange for and coordinate the provision of assisted outpatient treat- 17 ment, to monitor treatment compliance by assisted outpatients, to evalu- 18 ate the condition or needs of assisted outpatients, to take appropriate 19 steps to address the needs of such individuals, and to ensure compliance 20 with court orders. 21 (5) "assisted outpatient" shall mean the person under a court order to 22 receive assisted outpatient treatment. 23 (6) "subject of the petition" or "subject" shall mean the person who 24 is alleged in a petition, filed pursuant to the provisions of this 25 section, to meet the criteria for assisted outpatient treatment. 26 (7) "correctional facility" and "local correctional facility" shall 27 have the same meanings as provided in section two of the correction law. 28 (8) "health care proxy" and "health care agent" shall have the same 29 meanings as provided in article twenty-nine-C of the public health law. 30 (9) "program coordinator" shall mean an individual appointed by the 31 commissioner [of mental health], pursuant to subdivision (f) of section 32 7.17 of this chapter, who is responsible for the oversight and monitor- 33 ing of assisted outpatient treatment programs. 34 (b) Programs. The director of community services of each local govern- 35 mental unit shall operate, direct and supervise an assisted outpatient 36 treatment program. The director of a hospital licensed or operated by 37 the office [of mental health] may operate, direct and supervise an 38 assisted outpatient treatment program, upon approval by the commission- 39 er. Directors of community services shall be permitted to satisfy the 40 provisions of this subdivision through the operation of joint assisted 41 outpatient treatment programs. Nothing in this subdivision shall be 42 interpreted to preclude the combination or coordination of efforts 43 between and among local governmental units and hospitals in providing 44 and coordinating assisted outpatient treatment. 45 (c) Criteria. A person may be ordered to receive assisted outpatient 46 treatment if the court finds that such person: 47 (1) is eighteen years of age or older; and 48 (2) is suffering from a mental illness; and 49 (3) is unlikely to survive safely in the community without super- 50 vision, based on a clinical determination; and 51 (4) has a history of lack of compliance with treatment for mental 52 illness that has: 53 (i) [prior to the filing of the petition,] at least twice within the 54 [last] thirty-six months prior to the filing of the petition been a 55 significant factor in necessitating hospitalization in a hospital, or 56 receipt of services in a forensic or other mental health unit of a
A. 604--A 5 1 correctional facility or a local correctional facility[, not including]; 2 provided that such thirty-six month period shall be extended by the 3 length of any current period[, or period ending] of hospitalization or 4 incarceration, and any such period that ended within the last six 5 months[, during which the person was or is hospitalized or incarcerat- 6 ed]; or 7 (ii) within forty-eight months prior to the filing of the petition, 8 resulted in one or more acts of serious violent behavior toward self or 9 others or threats of, or attempts at, serious physical harm to self or 10 others [within the last forty-eight months, not including]; provided 11 that such forty-eight month period shall be extended by the length of 12 any current period[, or period ending] of hospitalization or incarcera- 13 tion, and any such period that ended within the last six months[, in 14 which the person was or is hospitalized or incarcerated]; and 15 (5) is, as a result of his or her mental illness, unlikely to volun- 16 tarily participate in outpatient treatment that would enable him or her 17 to live safely in the community; and 18 (6) in view of his or her treatment history and current behavior, is 19 in need of assisted outpatient treatment in order to prevent a relapse 20 or deterioration which would be likely to result in serious harm to the 21 person or others as defined in section 9.01 of this article; and 22 (7) is likely to benefit from assisted outpatient treatment. 23 (d) Health care proxy. Nothing in this section shall preclude a person 24 with a health care proxy from being subject to a petition pursuant to 25 this chapter and consistent with article twenty-nine-C of the public 26 health law. 27 (e) Investigation of reports. The commissioner shall promulgate regu- 28 lations establishing a procedure to ensure that reports of a person who 29 may be in need of assisted outpatient treatment, including those 30 received from family and community members of such person, are investi- 31 gated in a timely manner and, where appropriate, result in the filing of 32 petitions for assisted outpatient treatment. 33 (f) Petition to the court. (1) A petition for an order authorizing 34 assisted outpatient treatment may be filed in the supreme or county 35 court in the county in which the subject of the petition is present or 36 reasonably believed to be present. When a director of community 37 services has reason to believe that an assisted outpatient has changed 38 his or her county of residence, future petitions and applications under 39 this section may be filed in the supreme or county court in the new 40 county of residence, which shall have concurrent jurisdiction with the 41 court that initially ordered such treatment. Such petition may be initi- 42 ated only by the following persons: 43 (i) any person eighteen years of age or older with whom the subject of 44 the petition resides; or 45 (ii) the parent, spouse, sibling eighteen years of age or older, or 46 child eighteen years of age or older of the subject of the petition; or 47 (iii) the director of a hospital in which the subject of the petition 48 is hospitalized, or pursuant to section four hundred four of the 49 correction law; or 50 (iv) the director of any public or charitable organization, agency or 51 home providing mental health services to the subject of the petition or 52 in whose institution the subject of the petition resides; or 53 (v) a qualified psychiatrist who is either supervising the treatment 54 of or treating the subject of the petition for a mental illness; or 55 (vi) a psychologist, licensed pursuant to article one hundred fifty- 56 three of the education law, or a social worker, licensed pursuant to
A. 604--A 6 1 article one hundred fifty-four of the education law, who is treating the 2 subject of the petition for a mental illness; or 3 (vii) the director of community services, or his or her designee, or 4 the social services official, as defined in the social services law, of 5 the city or county in which the subject of the petition is present or 6 reasonably believed to be present; or 7 (viii) a parole officer or probation officer assigned to supervise the 8 subject of the petition[.]; or 9 (ix) the director of the hospital or the superintendent of a correc- 10 tional facility in which the subject of the petition is imprisoned, 11 pursuant to section four hundred four of the correction law. 12 (2) The commissioner shall promulgate regulations pursuant to which 13 persons initiating a petition, pursuant to subparagraphs (i) and (ii) of 14 paragraph one of this subdivision, may receive assistance in filing such 15 petitions, where appropriate, as determined pursuant to subdivision (e) 16 of this section. 17 (3) The petition shall state: 18 (i) each of the criteria for assisted outpatient treatment as set 19 forth in subdivision (c) of this section; 20 (ii) facts which support the petitioner's belief that the subject of 21 the petition meets each criterion, provided that the hearing on the 22 petition need not be limited to the stated facts; and 23 (iii) that the subject of the petition is present, or is reasonably 24 believed to be present, within the county where such petition is filed. 25 [(3)] (4) The petition shall be accompanied by an affirmation or affi- 26 davit of a physician, who shall not be the petitioner, stating that such 27 physician is willing and able to testify at the hearing on the petition 28 and that either [that]: 29 (i) such physician has personally examined the subject of the petition 30 no more than ten days prior to the submission of the petition[,] and 31 recommends assisted outpatient treatment for the subject of the peti- 32 tion[, and is willing and able to testify at the hearing on the peti- 33 tion]; or 34 (ii) no more than ten days prior to the filing of the petition, such 35 physician or his or her designee has made appropriate attempts but has 36 not been successful in eliciting the cooperation of the subject of the 37 petition to submit to an examination, such physician has reason to 38 suspect that the subject of the petition meets the criteria for assisted 39 outpatient treatment, and such physician is willing and able to examine 40 the subject of the petition [and testify at the hearing on the petition] 41 prior to providing testimony. 42 [(4)] (5) In counties with a population of less than eighty thousand, 43 the affirmation or affidavit required by paragraph [three] four of this 44 subdivision may be made by a physician who is an employee of the office. 45 The office is authorized and directed to make available, at no cost to 46 the county, a qualified physician for the purpose of making such affir- 47 mation or affidavit consistent with the provisions of such paragraph. 48 [(f)] (g) Service. The petitioner shall cause written notice of the 49 petition to be given to the subject of the petition and a copy thereof 50 to be given personally or by mail to the persons listed in section 9.29 51 of this article, the mental hygiene legal service, the health care agent 52 if any such agent is known to the petitioner, the appropriate program 53 coordinator, and the appropriate director of community services, if such 54 director is not the petitioner. 55 [(g)] (h) Right to counsel. The subject of the petition shall have the 56 right to be represented by the mental hygiene legal service, or private-
A. 604--A 7 1 ly financed counsel, at all stages of a proceeding commenced under this 2 section. 3 [(h)] (i) Hearing. (1) Upon receipt of the petition, the court shall 4 fix the date for a hearing. Such date shall be no later than three days 5 from the date such petition is received by the court, excluding Satur- 6 days, Sundays and holidays. Adjournments shall be permitted only for 7 good cause shown. In granting adjournments, the court shall consider the 8 need for further examination by a physician or the potential need to 9 provide assisted outpatient treatment expeditiously. The court shall 10 cause the subject of the petition, any other person receiving notice 11 pursuant to subdivision [(f)] (g) of this section, the petitioner, the 12 physician whose affirmation or affidavit accompanied the petition, and 13 such other persons as the court may determine to be advised of such 14 date. Upon such date, or upon such other date to which the proceeding 15 may be adjourned, the court shall hear testimony and, if it be deemed 16 advisable and the subject of the petition is available, examine the 17 subject of the petition in or out of court. If the subject of the peti- 18 tion does not appear at the hearing, and appropriate attempts to elicit 19 the attendance of the subject have failed, the court may conduct the 20 hearing in the subject's absence. In such case, the court shall set 21 forth the factual basis for conducting the hearing without the presence 22 of the subject of the petition. 23 (2) The court shall not order assisted outpatient treatment unless an 24 examining physician, who recommends assisted outpatient treatment and 25 has personally examined the subject of the petition no more than ten 26 days before the filing of the petition, testifies in person at the hear- 27 ing. Such physician shall state the facts and clinical determinations 28 which support the allegation that the subject of the petition meets each 29 of the criteria for assisted outpatient treatment; provided that the 30 parties may stipulate, upon mutual consent, that such physician need not 31 testify. 32 (3) If the subject of the petition has refused to be examined by a 33 physician, the court may request the subject to consent to an examina- 34 tion by a physician appointed by the court. If the subject of the peti- 35 tion does not consent and the court finds reasonable cause to believe 36 that the allegations in the petition are true, the court may order peace 37 officers, acting pursuant to their special duties, or police officers 38 who are members of an authorized police department or force, or of a 39 sheriff's department to take the subject of the petition into custody 40 and transport him or her to a hospital for examination by a physician. 41 Retention of the subject of the petition under such order shall not 42 exceed twenty-four hours. The examination of the subject of the petition 43 may be performed by the physician whose affirmation or affidavit accom- 44 panied the petition pursuant to paragraph [three] four of subdivision 45 [(e)] (f) of this section, if such physician is privileged by such 46 hospital or otherwise authorized by such hospital to do so. If such 47 examination is performed by another physician, the examining physician 48 may consult with the physician whose affirmation or affidavit accompa- 49 nied the petition as to whether the subject meets the criteria for 50 assisted outpatient treatment. 51 (4) A physician who testifies pursuant to paragraph two of this subdi- 52 vision shall state: (i) the facts [which] and clinical determinations 53 that support the allegation that the subject meets each of the criteria 54 for assisted outpatient treatment, (ii) that the treatment is the least 55 restrictive alternative, (iii) the recommended assisted outpatient 56 treatment, and (iv) the rationale for the recommended assisted outpa-
A. 604--A 8 1 tient treatment. If the recommended assisted outpatient treatment 2 includes medication, such physician's testimony shall describe the types 3 or classes of medication which should be authorized, shall describe the 4 beneficial and detrimental physical and mental effects of such medica- 5 tion, and shall recommend whether such medication should be self-admin- 6 istered or administered by authorized personnel. 7 (5) The subject of the petition shall be afforded an opportunity to 8 present evidence, to call witnesses on his or her behalf, and to cross- 9 examine adverse witnesses. 10 [(i)] (j) Written treatment plan. (1) The court shall not order 11 assisted outpatient treatment unless a physician appointed by the appro- 12 priate director, in consultation with such director, develops and 13 provides to the court a proposed written treatment plan. The written 14 treatment plan shall include case management services or assertive 15 community treatment team services to provide care coordination. The 16 written treatment plan also shall include all categories of services, as 17 set forth in paragraph one of subdivision (a) of this section, which 18 such physician recommends that the subject of the petition receive. All 19 service providers shall be notified regarding their inclusion in the 20 written treatment plan. If the written treatment plan includes medica- 21 tion, it shall state whether such medication should be self-administered 22 or administered by authorized personnel, and shall specify type and 23 dosage range of medication most likely to provide maximum benefit for 24 the subject. If the written treatment plan includes alcohol or substance 25 abuse counseling and treatment, such plan may include a provision 26 requiring relevant testing for either alcohol or illegal substances 27 provided the physician's clinical basis for recommending such plan 28 provides sufficient facts for the court to find (i) that such person has 29 a history of alcohol or substance abuse that is clinically related to 30 the mental illness; and (ii) that such testing is necessary to prevent a 31 relapse or deterioration which would be likely to result in serious harm 32 to the person or others. If a director is the petitioner, the written 33 treatment plan shall be provided to the court no later than the date of 34 the hearing on the petition. If a person other than a director is the 35 petitioner, such plan shall be provided to the court no later than the 36 date set by the court pursuant to paragraph three of subdivision [(j)] 37 (k) of this section. 38 (2) The physician appointed to develop the written treatment plan 39 shall provide the following persons with an opportunity to actively 40 participate in the development of such plan: the subject of the peti- 41 tion; the treating physician, if any; and upon the request of the 42 subject of the petition, an individual significant to the subject 43 including any relative, close friend or individual otherwise concerned 44 with the welfare of the subject. The appointed physician shall make a 45 reasonable effort to gather relevant information for the development of 46 the treatment plan from the subject of the petition's family member or 47 members, or his or her significant other. If the subject of the petition 48 has executed a health care proxy, the appointed physician shall consider 49 any directions included in such proxy in developing the written treat- 50 ment plan. 51 (3) The court shall not order assisted outpatient treatment unless a 52 physician appearing on behalf of a director testifies to explain the 53 written proposed treatment plan; provided that the parties may stipu- 54 late, upon mutual consent, that such physician need not testify. Such 55 physician shall state the categories of assisted outpatient treatment 56 recommended, the rationale for each such category, facts which establish
A. 604--A 9 1 that such treatment is the least restrictive alternative, and, if the 2 recommended assisted outpatient treatment plan includes medication, such 3 physician shall state the types or classes of medication recommended, 4 the beneficial and detrimental physical and mental effects of such medi- 5 cation, and whether such medication should be self-administered or 6 administered by an authorized professional. If the subject of the peti- 7 tion has executed a health care proxy, such physician shall state the 8 consideration given to any directions included in such proxy in develop- 9 ing the written treatment plan. If a director is the petitioner, testi- 10 mony pursuant to this paragraph shall be given at the hearing on the 11 petition. If a person other than a director is the petitioner, such 12 testimony shall be given on the date set by the court pursuant to para- 13 graph three of subdivision [(j)] (k) of this section. 14 [(j)] (k) Disposition. (1) If after hearing all relevant evidence, the 15 court does not find by clear and convincing evidence that the subject of 16 the petition meets the criteria for assisted outpatient treatment, the 17 court shall dismiss the petition. 18 (2) If after hearing all relevant evidence, the court finds by clear 19 and convincing evidence that the subject of the petition meets the 20 criteria for assisted outpatient treatment, and there is no appropriate 21 and feasible less restrictive alternative, the court may order the 22 subject to receive assisted outpatient treatment for an initial period 23 not to exceed one year. In fashioning the order, the court shall specif- 24 ically make findings by clear and convincing evidence that the proposed 25 treatment is the least restrictive treatment appropriate and feasible 26 for the subject. The order shall state an assisted outpatient treatment 27 plan, which shall include all categories of assisted outpatient treat- 28 ment, as set forth in paragraph one of subdivision (a) of this section, 29 which the assisted outpatient is to receive, but shall not include any 30 such category that has not been recommended in [both] the proposed writ- 31 ten treatment plan and [the] in any testimony provided to the court 32 pursuant to subdivision [(i)](j) of this section. 33 (3) If after hearing all relevant evidence presented by a petitioner 34 who is not a director, the court finds by clear and convincing evidence 35 that the subject of the petition meets the criteria for assisted outpa- 36 tient treatment, and the court has yet to be provided with a written 37 proposed treatment plan and testimony pursuant to subdivision [(i)] (j) 38 of this section, the court shall order the appropriate director to 39 provide the court with such plan and testimony no later than the third 40 day, excluding Saturdays, Sundays and holidays, immediately following 41 the date of such order; provided that the parties may stipulate upon 42 mutual consent that such testimony need not be provided. Upon receiving 43 such plan and any required testimony, the court may order assisted 44 outpatient treatment as provided in paragraph two of this subdivision. 45 (4) A court may order the patient to self-administer psychotropic 46 drugs or accept the administration of such drugs by authorized personnel 47 as part of an assisted outpatient treatment program. Such order may 48 specify the type and dosage range of such psychotropic drugs and such 49 order shall be effective for the duration of such assisted outpatient 50 treatment. 51 (5) If the petitioner is the director of a hospital that operates an 52 assisted outpatient treatment program, the court order shall direct the 53 hospital director to provide or arrange for all categories of assisted 54 outpatient treatment for the assisted outpatient throughout the period 55 of the order. In all other instances, the order shall require the appro- 56 priate director, as that term is defined in this section, to provide or
A. 604--A 10 1 arrange for all categories of assisted outpatient treatment for the 2 assisted outpatient throughout the period of the order. Orders issued 3 on or after the effective date of the chapter of the laws of two thou- 4 sand eighteen that amended this section shall require the appropriate 5 director "as determined by the program coordinator" to provide or 6 arrange for all categories of assisted outpatient treatment for the 7 assisted outpatient throughout the period of the order. 8 (6) The director shall cause a copy of any court order issued pursuant 9 to this section to be served personally, or by mail, facsimile or elec- 10 tronic means, upon the assisted outpatient, the mental hygiene legal 11 service or anyone acting on the assisted outpatient's behalf, the 12 original petitioner, identified service providers, and all others enti- 13 tled to notice under subdivision [(f)] (g) of this section. 14 [(k)] (l) Relocation of assisted outpatients. The commissioner shall 15 promulgate regulations requiring that, during the period of the order, 16 an assisted outpatient and any other appropriate persons shall notify 17 the program coordinator within a reasonable time prior to such assisted 18 outpatient relocating within the state of New York to an area not served 19 by the director who has been directed to provide or arrange for the 20 assisted outpatient treatment. Upon receiving notification of such relo- 21 cation, the program coordinator shall redetermine who the appropriate 22 director shall be and cause a copy of the court order and treatment plan 23 to be transmitted to such director. 24 (m) Petition for [additional periods of] continued treatment. (1) 25 [Prior] Within thirty days prior to the expiration of an order pursuant 26 to this section, the appropriate director shall review whether the 27 assisted outpatient continues to meet the criteria for assisted outpa- 28 tient treatment. [If, as documented in the petition, the director deter- 29 mines that such criteria continue to be met or has made appropriate 30 attempts to, but has not been successful in eliciting, the cooperation 31 of the subject to submit to an examination, within thirty days prior to 32 the expiration of an order of assisted outpatient treatment, such direc- 33 tor may petition the court to order continued assisted outpatient treat- 34 ment pursuant to paragraph two of this subdivision. Upon determining 35 whether such criteria continue to be met, such director shall notify the 36 program coordinator in writing as to whether a petition for continued 37 assisted outpatient treatment is warranted and whether such a petition 38 was or will be filed.] Upon determining that one or more of such crite- 39 ria are no longer met, such director shall notify the program coordina- 40 tor in writing that a petition for continued assisted outpatient treat- 41 ment is not warranted. Upon determining that such criteria continue to 42 be met, he or she shall petition the court to order continued assisted 43 outpatient treatment for a period not to exceed one year from the expi- 44 ration date of the current order. If the court's disposition of such 45 petition does not occur prior to the expiration date of the current 46 order, the current order shall remain in effect until such disposition. 47 The procedures for obtaining any order pursuant to this subdivision 48 shall be in accordance with the provisions of the foregoing subdivision 49 of this section; provided that the time restrictions included in para- 50 graph four of subdivision (c) of this section shall not be applicable. 51 The notice provisions set forth in paragraph six of subdivision (k) of 52 this section shall be applicable. Any court order requiring periodic 53 blood tests or urinalysis for the presence of alcohol or illegal drugs 54 shall be subject to review after six months by the physician who devel- 55 oped the written treatment plan or another physician designated by the
A. 604--A 11 1 director, and such physician shall be authorized to terminate such blood 2 tests or urinalysis without further action by the court. 3 (2) Within thirty days prior to the expiration of an order of assisted 4 outpatient treatment, [the appropriate director or] the current peti- 5 tioner, if the current petition was filed pursuant to subparagraph (i) 6 or (ii) of paragraph one of subdivision [(e)] (f) of this section, and 7 the current petitioner retains his or her original status pursuant to 8 the applicable subparagraph, may petition the court to order continued 9 assisted outpatient treatment for a period not to exceed one year from 10 the expiration date of the current order. If the court's disposition of 11 such petition does not occur prior to the expiration date of the current 12 order, the current order shall remain in effect until such disposition. 13 The procedures for obtaining any order pursuant to this subdivision 14 shall be in accordance with the provisions of the foregoing subdivisions 15 of this section; provided that the time restrictions included in para- 16 graph four of subdivision (c) of this section shall not be applicable. 17 The notice provisions set forth in paragraph six of subdivision [(j)] 18 (k) of this section shall be applicable. Any court order requiring peri- 19 odic blood tests or urinalysis for the presence of alcohol or illegal 20 drugs shall be subject to review after six months by the physician who 21 developed the written treatment plan or another physician designated by 22 the director, and such physician shall be authorized to terminate such 23 blood tests or urinalysis without further action by the court. 24 [(l)] (3) If neither the appropriate director nor the current peti- 25 tioner petition for continued assisted outpatient treatment pursuant to 26 this paragraph and the order of the court expires, any other person 27 authorized to petition pursuant to paragraph one of subdivision (f) of 28 this section may bring a new petition for assisted outpatient treatment. 29 If such new petition is filed less than sixty days after the expiration 30 of such order, the time restrictions provided in paragraph four of 31 subdivision (c) of this section shall not be applicable to the new peti- 32 tion. 33 (4) If, thirty days prior to the expiration of an order, the assisted 34 outpatient is deemed by the appropriate director to be missing and 35 thereby unavailable for evaluation as to whether he or she continues to 36 meet the criteria for assisted outpatient treatment, such director shall 37 petition the court to extend the term of the current order until sixty 38 days after such time as the assisted outpatient is located. If the court 39 grants the extension, the director shall continue reasonable efforts to 40 locate the assisted outpatient. Upon location of the assisted outpa- 41 tient, the director shall review whether the assisted outpatient contin- 42 ues to meet the criteria for assisted outpatient treatment, pursuant to 43 paragraph two of this subdivision. 44 (n) Petition for an order to stay, vacate or modify. (1) In addition 45 to any other right or remedy available by law with respect to the order 46 for assisted outpatient treatment, the assisted outpatient, the mental 47 hygiene legal service, or anyone acting on the assisted outpatient's 48 behalf may petition the court on notice to the director, the original 49 petitioner, and all others entitled to notice under subdivision [(f)] 50 (g) of this section to stay, vacate or modify the order. 51 (2) The appropriate director shall petition the court for approval 52 before instituting a proposed material change in the assisted outpatient 53 treatment plan, unless such change is authorized by the order of the 54 court. Such petitions to change an assisted outpatient treatment plan, 55 as well as petitions for continued treatment, may be made to any judge 56 of the supreme or county courts in the county in which the subject of
A. 604--A 12 1 the petition is present or reasonably believed to be present. Such peti- 2 tion shall be filed on notice to all parties entitled to notice under 3 subdivision [(f)] (g) of this section. Not later than five days after 4 receiving such petition, excluding Saturdays, Sundays and holidays, the 5 court shall hold a hearing on the petition; provided that if the 6 assisted outpatient informs the court that he or she agrees to the 7 proposed material change, the court may approve such change without a 8 hearing. Non-material changes may be instituted by the director without 9 court approval. For the purposes of this paragraph, a material change is 10 an addition or deletion of a category of services to or from a current 11 assisted outpatient treatment plan, or any deviation without the 12 assisted outpatient's consent from the terms of a current order relating 13 to the administration of psychotropic drugs. 14 [(m)] (o) Appeals. Review of an order issued pursuant to this section 15 shall be had in like manner as specified in section 9.35 of this 16 article; provided that notice shall be provided to all parties entitled 17 to notice under subdivision (g) of this section. 18 [(n)] (p) Failure to comply with assisted outpatient treatment. Where 19 in the clinical judgment of a physician, (i) the assisted outpatient, 20 has failed or refused to comply with the assisted outpatient treatment, 21 (ii) efforts were made to solicit compliance, and (iii) such assisted 22 outpatient may be in need of involuntary admission to a hospital pursu- 23 ant to section 9.27 of this article or immediate observation, care and 24 treatment pursuant to section 9.39 or 9.40 of this article, such physi- 25 cian may request the appropriate director of community services, the 26 director's designee, or any physician designated by the director of 27 community services pursuant to section 9.37 of this article, to direct 28 the removal of such assisted outpatient to an appropriate hospital for 29 an examination to determine if such person has a mental illness for 30 which he or she is in need of hospitalization is necessary pursuant to 31 section 9.27, 9.39 or 9.40 of this article[. Furthermore, if such 32 assisted outpatient refuses to take medications as required by the court 33 order, or he or she refuses to take, or fails a blood test, urinalysis, 34 or alcohol or drug test as required by the court order, such physician 35 may consider such refusal or failure when determining whether]; provided 36 that if, after efforts to solicit compliance, such physician determines 37 that the assisted outpatient's failure to comply with the assisted 38 outpatient treatment includes a substantial failure to take medication, 39 pass or submit to blood testing or urinalysis, or receive treatment for 40 alcohol or substance abuse, such physician may presume that the assisted 41 outpatient is in need of an examination to determine whether he or she 42 has a mental illness for which hospitalization is necessary. Upon the 43 request of such physician, the appropriate director, the director's 44 designee, or any physician designated pursuant to section 9.37 of this 45 article, may direct peace officers, acting pursuant to their special 46 duties, or police officers who are members of an authorized police 47 department or force or of a sheriff's department to take the assisted 48 outpatient into custody and transport him or her to the hospital operat- 49 ing the assisted outpatient treatment program or to any hospital author- 50 ized by the director of community services to receive such persons. Such 51 law enforcement officials shall carry out such directive. Upon the 52 request of such physician, the appropriate director, the director's 53 designee, or any physician designated pursuant to section 9.37 of this 54 article, an ambulance service, as defined by subdivision two of section 55 three thousand one of the public health law, or an approved mobile 56 crisis outreach team as defined in section 9.58 of this article shall be
A. 604--A 13 1 authorized to take into custody and transport any such person to the 2 hospital operating the assisted outpatient treatment program, or to any 3 other hospital authorized by the appropriate director of community 4 services to receive such persons. Any director of community services, or 5 designee, shall be authorized to direct the removal of an assisted 6 outpatient who is present in his or her county to an appropriate hospi- 7 tal, in accordance with the provisions of this subdivision, based upon a 8 determination of the appropriate director of community services direct- 9 ing the removal of such assisted outpatient pursuant to this subdivi- 10 sion. Such person may be retained for observation, care and treatment 11 and further examination in the hospital for up to seventy-two hours to 12 permit a physician to determine whether such person has a mental illness 13 and is in need of involuntary care and treatment in a hospital pursuant 14 to the provisions of this article. Any continued involuntary retention 15 of the assisted outpatient in such hospital beyond the initial seventy- 16 two hour period shall be in accordance with the provisions of this arti- 17 cle relating to the involuntary admission and retention of a person. If 18 at any time during the seventy-two hour period the person is determined 19 not to meet the involuntary admission and retention provisions of this 20 article, and does not agree to stay in the hospital as a voluntary or 21 informal patient, he or she must be released. Failure to comply with an 22 order of assisted outpatient treatment shall not be grounds for involun- 23 tary civil commitment or a finding of contempt of court. 24 [(o)] (q) Effect of determination that a person is in need of assisted 25 outpatient treatment. The determination by a court that a person is in 26 need of assisted outpatient treatment shall not be construed as or 27 deemed to be a determination that such person is incapacitated pursuant 28 to article eighty-one of this chapter. 29 [(p)] (r) False petition. A person making a false statement or provid- 30 ing false information or false testimony in a petition or hearing under 31 this section shall be subject to criminal prosecution pursuant to arti- 32 cle one hundred seventy-five or article two hundred ten of the penal 33 law. 34 [(q)] (s) Exception. Nothing in this section shall be construed to 35 affect the ability of the director of a hospital to receive, admit, or 36 retain patients who otherwise meet the provisions of this article 37 regarding receipt, retention or admission. 38 [(r)] (t) Education and training. (1) The office [of mental health], 39 in consultation with the office of court administration, shall prepare 40 educational and training materials on the use of this section, which 41 shall be made available to local governmental units, providers of 42 services, judges, court personnel, law enforcement officials and the 43 general public. 44 (2) The office, in consultation with the office of court adminis- 45 tration, shall establish a mental health training program for supreme 46 and county court judges and court personnel, and shall provide such 47 training with such frequency and in such locations as may be appropriate 48 to meet statewide needs. Such training shall focus on the use of this 49 section and generally address issues relating to mental illness and 50 mental health treatment. 51 § 6. Section 29.15 of the mental hygiene law is amended by adding a 52 new subdivision (o) to read as follows: 53 (o) If the director of a department facility does not petition for 54 assisted outpatient treatment pursuant to section 9.60 of this chapter 55 upon the discharge of an inpatient admitted pursuant to section 9.27, 56 9.39 or 9.40 of this chapter, or upon the expiration of a period of
A. 604--A 14 1 conditional release for such inpatient, such director shall report such 2 discharge or such expiration in writing to the director of community 3 services of the local governmental unit in which the inpatient is 4 expected to reside. 5 § 7. Subdivision 3 of section 404 of the correction law, as added by 6 chapter 1 of the laws of 2013, is amended and a new subdivision 5 is 7 added to read as follows: 8 3. Within a reasonable period prior to discharge of an inmate commit- 9 ted from a [state correctional facility from a] hospital in the depart- 10 ment of mental hygiene to the community, the director shall ensure that 11 a clinical assessment has been completed to determine whether the inmate 12 meets the criteria for assisted outpatient treatment pursuant to subdi- 13 vision (c) of section 9.60 of the mental hygiene law. If, as a result of 14 such assessment, the director determines that the inmate meets such 15 criteria, prior to discharge the director of the hospital shall either 16 petition for a court order pursuant to section 9.60 of the mental 17 hygiene law, or report in writing to the director of community services 18 of the local governmental unit in which the inmate is expected to reside 19 so that an investigation [may] shall be conducted pursuant to section 20 9.47 of the mental hygiene law. 21 5. Within a reasonable period prior to release or discharge of an 22 inmate who is not currently committed to a hospital in the department of 23 mental hygiene from a state correctional facility to the community, if 24 such inmate has a serious mental illness pursuant to paragraph (e) of 25 subdivision six of section one hundred thirty-seven of this chapter, the 26 department shall notify the director of a hospital who shall ensure that 27 a clinical assessment has been completed to determine whether the inmate 28 meets the criteria for assisted outpatient treatment pursuant to subdi- 29 vision (c) of section 9.60 of the mental hygiene law. If, as a result of 30 such assessment, the director determines that the inmate meets such 31 criteria, prior to release or discharge, the director of the hospital 32 shall either petition for a court order pursuant to section 9.60 of the 33 mental hygiene law, or report in writing to the director of community 34 services of the local governmental unit in which the inmate is expected 35 to reside so that an investigation shall be conducted pursuant to 36 section 9.47 of the mental hygiene law. 37 § 8. Section 18 of chapter 408 of the laws of 1999, constituting 38 Kendra's Law, as amended by chapter 67 of the laws of 2017, is amended 39 to read as follows: 40 § 18. This act shall take effect immediately, provided that section 41 fifteen of this act shall take effect April 1, 2000, provided, further, 42 that subdivision (e) of section 9.60 of the mental hygiene law as added 43 by section six of this act shall be effective 90 days after this act 44 shall become law[; and that this act shall expire and be deemed repealed 45 June 30, 2022]. 46 § 9. Severability. If any clause, sentence, paragraph, section or part 47 of this act shall be adjudged by any court of competent jurisdiction to 48 be invalid, and after exhaustion of all further judicial review, the 49 judgment shall not affect, impair or invalidate the remainder thereof, 50 but shall be confined in its operation to the clause, sentence, para- 51 graph, section or part thereof directly involved in the controversy. 52 § 10. This act shall take effect immediately.