ATTORNEY GENERAL’S LEGISLATIVE PROGRAM BILL #99-1

AN ACT to amend the mental hygiene law and the social servies law , in relation to authorizing court orders to require mentally ill outpatients to comply with prescribed treatment, and expanding medical assistance presumptive eligibility.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

§ 1. Short title. This act shall be known as the “Assisted Outpatient Treatment Act.”

§ 2. Legislative findings. The legislature finds that there are mentally ill persons who can function well and safely in the community with supervision and treatment, but who without such assistance, will deteriorate and require long periods of hospitalization.

The legislature further finds that some mentally ill persons, because of their illness, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis. Family members and caregivers often must standby helplessly and watch their loved ones and patients decompensate.

The legislature further finds that thirty-nine states have laws providing for court-ordered treatment for mentally ill outpatients with histories of failing to comply with prescribed care, and that studies show that outpatients subject to such laws have fewer psychiatric admissions, spend fewer days in hospitals and have fewer incidents of violence than similar outpatients not subject to court-ordered treatment.

The legislature therefore finds that involuntary outpatient treatment as provided in this act is compassionate, not punitive, will restore patients’ dignity, and will enable mentally ill persons to lead more productive and satisfying lives.

§ 3. Section 9.01 of the mental hygiene law, as amended by chapter 723 of the laws of 1989, is amended to read as follows:

(NOTE: MANY OF THE CHANGES IN THE LEGISLATION ARE TECHNICAL. THE SUBSTANTIVE CHANGES START IN THE LATER PART OF THE BILL, SPECIFICALLY § 14 ADDING A NEW SECTION  9.60. YOU CAN JUMP TO THAT NOW OR READ A SUMMARY.

§ 9.01. Definitions

As used in this article:

“in need of INPATIENT care and treatment” means that a person has a mental illness for which INPATIENT ADMISSION TO A HOSPITAL FOR care and treatment IN A HOSPITAL is appropriate.

“in need of involuntary INPATIENT care and treatment” means that a person has a mental illness for which ADMISSION TO A HOSPITAL FOR care and treatment AS A PATIENT IN A HOSPITAL is essential to such person’s welfare and whose judgment is so impaired that he OR SHE is unable to understand the need for such care and treatment.

“likelihood to result in serious harm” or “likely to result in serious harm” means (a) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.

“need for retention” means that a person who has been admitted to a hospital pursuant to this article is in need of involuntary care and treatment in a hospital for a further period.

“record” of a patient shall consist of admission, transfer or retention papers and orders, and accompanying data required by this article and by the regulations of the commissioner.

“director of community services” means the director of community services for the mentally disabled appointed pursuant to article ELEVEN FORTY-ONE of this chapter.

“qualified psychiatrist” means a physician licensed to practice medicine in New York state who: (a) is a diplomate of the American board of psychiatry and neurology or is eligible to be certified by that board; or (b) is certified by the American osteopathic board of neurology and psychiatry or is eligible to be certified by that board.

§ 4. Subdivision (b) of § 9.05 of the mental hygiene law, as added by chapter 251 of the laws of 1972 and renumbered by chapter 978 of the laws of 1977, is amended to read as follows:

(b) A certificate, as required by this article, must show that the person is mentally ill and shall be based on an examination of the person alleged to be mentally ill made within ten days prior to the date of admission. The date of the certificate shall be the date of such examination. All certificates shall contain the facts and circumstances upon which the judgment of the physicians is based and shall show that the condition of the person examined is such that he OR SHE needs involuntary INPATIENT care and treatment IN A HOSPITAL and such other information as the commissioner may by regulation require.

 § 5. Section 9.13 of the mental hygiene law, as amended by chapter 789 of the laws of 1985, is amended to read as follows:

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§ 9.13 Voluntary admissions

(a) The director of any hospital may receive as a voluntary patient any suitable person in need of INPATIENT care and treatment, who voluntarily makes written application therefor. If the person is under sixteen years of age, the person may be received as a voluntary patient only on the application of the parent, legal guardian, or nextofkin of such person, or, subject to the terms of any court order or any instrument executed pursuant to section three hundred eightyfoura of the social services law, a social services official or authorized agency with care and custody of such person pursuant to the social services law, the director of the division for youth, acting in accordance with section five hundred nine of the executive law, or a person or entity having custody of the person pursuant to an order issued pursuant to section seven hundred fiftysix or one thousand fiftyfive of the family court act. If the person is over sixteen and under eighteen years of age, the director may, in his OR HER discretion, admit such person either as a voluntary patient on his OR HER own application or on the application of the person's parent, legal guardian, nextofkin, or, subject to the terms of any court order or any instrument executed pursuant to section three hundred eightyfoura of the social services law, a social services official or authorized agency with care and custody of such person pursuant to the social services law, the director of the division for youth, acting in accordance with section five hundred nine of the executive law, provided that such person knowingly and voluntarily consented to such application in accordance with such section, or a person or entity having custody of the person pursuant to an order issued pursuant to section seven hundred fiftysix or one thousand fiftyfive of the family court act.

(b) If such voluntary patient gives notice in writing to the director of the patient's desire to leave the hospital, the director shall promptly release the patient; provided, however, that if there are reasonable grounds for belief that the patient may be in need of involuntary INPATIENT care and treatment, the director may retain the patient for a period not to exceed seventytwo hours from receipt of such notice. Before the expiration of such seventytwo hour period, the director shall either release the patient or apply to the supreme court or the county court in the county where the hospital is located for an order authorizing the involuntary retention of such patient. The application and proceedings in connection therewith shall be in the manner prescribed in this article for a court authorization to retain an involuntary patient, except that notice of such application shall be served forthwith and, if a hearing be demanded, the date for hearing to be fixed by the court shall be at a time not later than three days from the date such notice has been received by the court. If it be determined by the court that the patient is mentally ill and in need of retention for involuntary care and treatment in the hospital, the court shall forthwith issue an order authorizing the retention of such patient for care and treatment in the hospital, or, if requested by the patient, his OR HER guardian, or committee, in such other nonpublic hospital as may be within the financial means of the patient, for a period not exceeding sixty days from the date of such order. Further application for retention of the patient for periods not exceeding six months, one year, and two year periods thereafter, respectively, may thereafter be made in accordance with the provisions of this article.

In the case of a patient under eighteen years of age, such notice requesting release of the patient may be given by the patient, by the person who made application for his OR HER admission, by a person of equal or closer relationship, or by the mental hygiene legal service. If such notice be given by any other person, the director may in his OR HER discretion refuse to discharge the patient and in the event of such refusal, such other person or the mental hygiene legal service may apply to the supreme court or to a county court for the release of the patient.

§ 6. Section 9.15 of the mental hygiene law, as added by chapter 251 of the laws of 1972 and renumbered by chapter 978 of the laws of 1977, is amended to read as follows:

§ 9.15 Informal admissions

The director of any hospital approved by the commissioner for such purpose may receive therein as an informal patient any suitable person in need of INPATIENT care and treatment requesting admission thereto. Such person may be admitted as a patient without making formal or written application therefor and any such patient shall be free to leave such hospital at any time after such admission.

§ 7. Subdivision (a) of § 9.21 of the mental hygiene law, as added by chapter 251 of the laws of 1972 and renumbered by chapter 978 of the laws of 1977, is amended to read as follows:

(a) It shall be the duty of all state and local officers having duties to perform relating to the mentally ill to encourage any person suitable therefor and in need of INPATIENT care and treatment for mental illness to apply for admission as a voluntary or informal patient.

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§ 8. Section 9.27 of the mental hygiene law, as amended by chapter 465 of the laws of 1992, is amended to read as follows:

§ 9.27 Involuntary admission on medical certification

(a) The director of a hospital may receive and retain therein as a patient any person alleged to be mentally ill and in need of involuntary INPATIENT care and treatment upon the certificates of two examining physicians, accompanied by an application for the admission of such person. The examination may be conducted jointly but each examining physician shall execute a separate certificate.

(b) Such application must have been executed within ten days prior to such admission. It may be executed by any one of the following:

• 1. any person with whom the person alleged to be mentally ill resides.
• 2. the father or mother, husband or wife, brother or sister, or the child of any such person or the nearest available relative.
• 3. the committee of such person.
• 4. an officer of any public or well recognized charitable institution or agency or home in whose institution the person alleged to be mentally ill resides.
• 5. the director of community services or social services official, as defined in the social services law, of the city or county in which any such person may be.
• 6. the director of the hospital or of a general hospital, as defined in article twentyeight of the public health law, in which the patient is hospitalized.
• 7. the director or person in charge of a facility providing care to alcoholics, or substance abusers or substance dependent persons.
• 8. the director of the division for youth, acting in accordance with the provisions of section five hundred nine of the executive law.
• 9. subject to the terms of any court order or any instrument executed pursuant to section three hundred eightyfoura of the social services law, a social services official or authorized agency which has, pursuant to the social services law, care and custody or guardianship and custody of a child over the age of sixteen.
• 10. subject to the terms of any court order a person or entity having custody of a child pursuant to an order issued pursuant to section seven hundred fiftysix or one thousand fiftyfive of the family court act.
• 11. a qualified psychiatrist who is either supervising the treatment of or treating such person for a mental illness in a facility licensed or operated by the office of mental health.

(c) Such application shall contain a statement of the facts upon which the allegation of mental illness and need for INVOLUNTARY INPATIENT care and treatment are based and shall be executed under penalty of perjury but shall not require the signature of a notary public thereon.

(d) Before an examining physician completes the certificate of examination of a person for involuntary INPATIENT care and treatment, he OR SHE shall consider alternative forms of care and treatment, INCLUDING INVOLUNTARY OUTPATIENT TREATMENT PURSUANT TO SECTION 9.60, that might be adequate to provide for the person's needs without requiring involuntary hospitalization. If the examining physician knows that the person he OR SHE is examining for involuntary INPATIENT care and treatment has been under prior treatment, he OR SHE shall, insofar as possible, consult with the physician or psychologist furnishing such prior treatment prior to completing his OR HER certificate. Nothing in this section shall prohibit or invalidate any involuntary admission made in accordance with the provisions of this chapter.

(e) The director of the hospital where such person is brought shall cause such person to be examined forthwith by a physician who shall be a member of the psychiatric staff of such hospital other than the original examining physicians whose certificate or certificates accompanied the application and, if such person is found to be in need of involuntary INPATIENT care and treatment, he OR SHE may be admitted thereto as a patient as herein provided.

(f) Following admission to a hospital, no patient may be sent to another hospital by any form of involuntary admission unless the mental hygiene legal service has been given notice thereof.

(g) Applications for involuntary admission of patients to residential treatment facilities for children and youth or transfer of involuntarily admitted patients to such facilities shall be reviewed by the preadmission certification committee serving such facility in accordance with section 9.51 of this article.

(h) If a person is examined and determined to be mentally ill, the fact that such person suffers from alcohol or substance abuse shall not preclude commitment under this section.

(i) After an application for the admission of a person has been completed and both physicians have examined such person and separately certified that he or she is mentally ill and in need of involuntary INPATIENT care and treatment IN A HOSPITAL, either physician is authorized to request peace officers, when acting pursuant to their special duties, or police officers, who are members of an authorized police department or force or of a sheriff's department, to take into custody and transport such person to a hospital for determination by the director whether such person qualifies for admission pursuant to this section. Upon the request of either physician an ambulance service, as defined by subdivision two of section three thousand one of the public health law, is authorized to transport such person to a hospital for determination by the director whether such person qualifies for admission pursuant to this section.

 § 9. Subdivision (a) of § 9.31 of the mental hygiene law, as amended by chapter 789 of the laws of 1985, is amended to read as follows:

(a) If, at any time prior to the expiration of sixty days from the date of involuntary admission of a patient on an application supported by medical certification, he OR SHE or any relative or friend or the mental hygiene legal service gives notice in writing to the director of request for hearing on the question of need for involuntary INPATIENT care and treatment, a hearing shall be held as herein provided. The patient or person requesting a hearing on behalf of the patient may designate the county where the hearing shall be held, which shall be either in the county where the hospital is located, the county of the patient's residence, or the county in which the hospital to which the patient was first admitted is located. Such hearing shall be held in the county so designated, subject to application by any interested party, including the director, for change of venue to any other county because of the convenience of parties or witnesses or the condition of the patient upon notice to the persons required to be served with notice of the patient's initial admission.

§ 10. Subdivision (a) of § 9.37 of the mental hygiene law, as amended by chapter 723 of the laws of 1989, is amended to read as follows:

(a) The director of a hospital, upon application by a director of community services or an examining physician duly designated by him or her, may receive and care for in such hospital as a patient any person who, in the opinion of the director of community services or the director's designee, has a mental illness for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or herself or others.

The need for immediate hospitalization shall be confirmed by a staff physician of the hospital prior to admission. Within seventytwo hours, excluding Sunday and holidays, after such admission, if such patient is to be retained for care and treatment beyond such time and he or she does not agree to remain in such hospital as a voluntary patient, the certificate of another examining physician who is a member of the psychiatric staff of the hospital that the patient is in need of involuntary INPATIENT care and treatment shall be filed with the hospital. From the time of his or her admission under this section the retention of such patient for care and treatment shall be subject to the provisions for notice, hearing, review, and judicial approval of continued retention or transfer and continued retention provided by this article for the admission and retention of involuntary patients, provided that, for the purposes of such provisions, the date of admission of the patient shall be deemed to be the date when the patient was first received in the hospital under this section.

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§ 11. Subdivision (b) of § 9.39 of the mental hygiene law, as added by chapter 251 of the laws of 1972 and renumbered by chapter 978 of the laws of 1977, is amended to read as follows:

(b) Within fifteen days of arrival at the hospital, if a determination is made that the person is not in need of involuntary INPATIENT care and treatment, he OR SHE shall be discharged unless he OR SHE agrees to remain as a voluntary or informal patient. If he OR SHE is in need of involuntary INPATIENT care and treatment and does not agree to remain as a voluntary or informal patient, he OR SHE may be retained beyond such fifteen day period only by admission to such hospital or another appropriate hospital pursuant to the provisions governing involuntary admission on application supported by medical certification and subject to the provisions for notice, hearing, review, and judicial approval of retention or transfer and retention governing such admissions, provided that, for the purposes of such provisions, the date of admission of the patient shall be deemed to be the date when the patient was first received under this section. If a hearing has been requested pursuant to the provisions of subdivision (a), the filing of an application for involuntary admission on medical certification shall not delay or prevent the holding of the hearing.

§ 12. Subdivisions (d) and (f) of § 9.40 of the mental hygiene law, as added by chapter 723 of the laws of 1989, are amended to read as follows:

(d) If at any time it is determined that the person is no longer in need of immediate observation, care and treatment in accordance with this section and is not in need of involuntary INPATIENT care and treatment IN A HOSPITAL, such person shall be released without regard to the provisions of section 29.15 of this chapter, unless such person agrees to be admitted to another appropriate hospital as a voluntary or informal patient.

(f) Nothing in this section shall preclude the involuntary admission of a person to an appropriate hospital pursuant to the provisions of this article if at any time during the seventytwo hour period it is determined that the person is in need of involuntary INPATIENT care and treatment IN A HOSPITAL and the person does not agree to be admitted to a hospital as a voluntary or informal patient. Efforts shall be made to assure that any arrangements for such involuntary admissions in an appropriate hospital shall be made within a reasonable period of time.

§ 13. Section 9.47 of the mental hygiene law, as added by chapter 251 of the laws of 1972 and renumbered by chapter 978 of the laws of 1977, is amended to read as follows:

§ 9.47 Duties of local officers in regard to their mentally ill

All directors of community services, health officers, and social services officials, as defined by the social services law, are charged with the duty of seeing that all mentally ill persons within their respective communities who are in need of INPATIENT care and treatment AT A HOSPITAL are admitted to a hospital pursuant to the provisions of this article. Social services officials and health officers shall notify the director of community services of any such person coming to their attention. Pending the determination of the condition of an alleged mentally ill person, it shall be the duty of the director of community services and, if there be no such director, of the local health officer to provide for the proper care of such person in a suitable facility.

§ 14. The mental hygiene law is amended by adding a new section 9.60 to read as follows:

§ 9.60 Involuntary outpatient treatment

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(a) Definitions. For the purposes of this section, the following definitions shall apply:

• (1) “involuntary outpatient treatment” shall mean outpatient services which have been ordered by the court, and shall include the following categories of services: medication; individual or group therapy; day or partial day programming activities; services and training, including educational and vocational activities; supervision of living arrangement; intensive case management services under the auspices of a program funded by the office of mental health; and any other services within the local plan developed pursuant to article fortyone of this chapter, prescribed to treat an outpatient’s mental illness and to assist an outpatient in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in the need for hospitalization.
• (2) “subject of the petition” shall mean the person who is alleged in the petition to meet the criteria for involuntary outpatient treatment.
• (3) “involuntary outpatient” shall mean the person under court order to receive outpatient treatment.
• (4) “outpatient treatment psychiatrist” shall mean the qualified psychiatrist designated by the court to oversee the treatment of the involuntary outpatient.

(b) Criteria for involuntary outpatient treatment. A person may be ordered to obtain involuntary outpatient treatment if the court finds that:

• (1) the person is suffering from a mental illness; and
• (2) in view of the person’s behavioral and treatment history, he or she is unlikely to survive safely in the community without supervision; and
• (3) the person has received inpatient care and treatment for mental illness within the thirty-six months immediately preceding the filing of the petition and has failed to comply on one or more occasions with a prescribed course of outpatient treatment; provided, however, that in authorizing the continuation of a prior order of involuntary outpatient treatment, the court need not find that the person has been hospitalized within the last thirty-six months; and
• (4) in view of the person’s behavioral and treatment history, the person is in need of involuntary outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others; and
• (5) the person is likely to benefit from involuntary outpatient treatment.

(c) Petition.

(1) A petition for an order authorizing involuntary outpatient treatment may be filed in the supreme court in the county in which the subject of such petition is present. Such petition may be filed by:

• (i) any person with whom the subject of the petition resides; or
• (ii) the parent, spouse, sibling, or child of the subject of the petition; or
• (iii) the director of a hospital in which the subject of the petition is hospitalized; or
• (iv) the director of any public or charitable organization, agency or home in whose institution the subject of the petition resides; or
• (v) a qualified psychiatrist who is either supervising the treatment of or treating the subject of the petition for a mental illness; or
• (vi) the director of community services or social services official, as defined in the social services law, of the city or county in which the subject of the petition is present.

(2) The petition shall state that the subject of the petition is present within the county where such petition is filed, and facts which support the petitioner’s belief that the subject of the petition meets the criteria for involuntary outpatient treatment as set forth in paragraphs (1) through (4) of subdivision (b) of this section.

(3) The petition shall be accompanied by an affirmation or affidavit of a qualified psychiatrist, stating either that:

• (i) such psychiatrist has personally examined the subject of the petition more recently than the eleventh day prior to the filing of the petition, believes that the subject of the petition is likely to benefit from involuntary outpatient treatment, and is willing and able to testify at the hearing on the petition and provide the court with a written proposed treatment plan; or
• (ii) more recently than the eleventh day prior to the filing of the petition, such psychiatrist or his or her designee has attempted without success to persuade the subject of the petition to submit to an examination, and that such psychiatrist is willing and able to examine the subject of the petition, testify at the hearing on the petition, and, if appropriate, provide the court with a proposed written treatment plan.

(d) Service. The petitioner shall cause written notice of the petition to be given to the subject of the petition and a copy thereof shall be given personally or by mail to the persons required by section 9.29 of this article to be served with notice of an involuntary patient’s initial admission and to the mental hygiene legal service.

(e) Hearing. (1) Upon receipt of the petition, the court shall fix the date for a hearing. Such date shall be no later than five days from the date such petition is received by the court, excluding Saturdays, Sundays and holidays. Adjournments shall be permitted only for good cause shown. In granting adjournments, the court shall consider the need to provide involuntary outpatient services expeditiously. The court shall cause the subject of the petition, any other person receiving notice pursuant to subdivision (d) of this section, the petitioner, the qualified psychiatrist whose affirmation or affidavit accompanied the petition pursuant to paragraph three of subdivision (c) of this section, the mental hygiene legal service, and such other persons as the court may determine to be advised of such date. Upon such date, or upon such other date to which the proceeding may be adjourned, the court shall hear testimony and, if it be deemed advisable and the subject of the petition is available, examine the subject of the petition in or out of court. If the subject of the petition does not appear at the hearing, the court may conduct the hearing in such person’s absence. The court may close the hearing to the public, unless the subject of the petition requests otherwise.

(2) No subject of a petition shall be ordered to receive involuntary outpatient treatment unless a qualified psychiatrist who recommends involuntary outpatient treatment and has personally examined the subject more recently than the eleventh day prior to the filing of the petition testifies in person at the hearing. The psychiatrist’s testimony shall state the facts which support the allegation that the subject of the petition meets all the criteria for involuntary outpatient treatment; the facts which support the allegation that such treatment is the least restrictive alternative; the involuntary outpatient treatment recommended; and the rationale for each category of recommended involuntary outpatient treatment. If the recommended involuntary outpatient treatment includes medication, the psychiatrist’s testimony shall describe the types or classes of medication which should be authorized; describe the beneficial and detrimental physical and mental effects of such medication; and state that there is no less restrictive alternative treatment appropriate for the subject. If the subject of the petition has refused to be examined by a qualified psychiatrist, the court may request the subject to consent to examination by a qualified psychiatrist appointed by the court. If the subject of the petition does not consent and the court finds sufficient evidence to believe that the allegations in the petition are true, the court may order peace officers, police officers, members of the sheriff’s department, an approved mobile crisis outreach team as defined in section 9.58 of this article, or an ambulance service as defined in subdivision two of section three thousand one of the public health law to take the subject of the petition into custody and transport him or her to a hospital or comprehensive psychiatric emergency program for evaluation by a qualified psychiatrist. Retention of the subject of the petition under such order shall not be for more than twenty-four hours.

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(3) The subject of the petition shall have the right to counsel and be afforded an opportunity to present evidence and crossexamine adverse witnesses.

(f) Proposed written treatment plan. No later than the date of the hearing, the qualified psychiatrist who testifies pursuant to paragraph two of subdivision (e) of this section shall provide the court with a written proposed treatment plan, which shall include all categories of services, as set forth in paragraph one of subdivision (a) of this section, which such psychiatrist recommends that the subject of the petition receive, and, for any such category that a provider of services has agreed to provide, the name and address of such provider of services.

(g) Disposition. (1) If after hearing all relevant evidence, the court finds that the subject of the petition does not meet the criteria for involuntary outpatient treatment, the court shall dismiss the petition.

(2) If after hearing all relevant evidence, the court finds by clear and convincing evidence that the subject of the petition meets the criteria for involuntary outpatient treatment, and that there is no appropriate and feasible less restrictive alternative, the court shall be authorized to order the subject to receive involuntary outpatient treatment for a period not to exceed twelve months. The order shall:

• (i) state an involuntary outpatient treatment plan, which shall include all categories of services, as set forth in paragraph one of subdivision (a) of this section, which the involuntary outpatient is to receive, but shall not include any such category that was not recommended in the proposed treatment plan provided to the court pursuant to subdivision (f) of this section. If such proposed treatment plan identified providers of services by name and address, the involuntary outpatient treatment plan shall further include, for each category of treatment ordered, the name and address of any provider of services that has agreed to provide such treatment; and
• (ii) designate the outpatient treatment psychiatrist, or direct the director of community services to designate the outpatient treatment psychiatrist and provide the court, not later than the seventh day following the date of the order, with the name and address of such psychiatrist; provided that any psychiatrist designated by the court, and any privately employed psychiatrist designated by the director of community services, shall agree to the designation; and
• (iii) direct the director of community services or his or her designee to provide or arrange for all categories of ordered services for which no provider of services is named in the involuntary outpatient treatment plan to be available to the involuntary outpatient throughout the period of the order; and, for each such category of services, to provide the court, not later than the seventh day following the date of the order, excluding Saturdays, Sundays and holidays, with the name and address of the provider of services that has been secured; and
• (iv) if the outpatient treatment psychiatrist has been designated in the order, direct each provider of services named in the involuntary outpatient treatment plan pursuant to subparagraph (i) of this paragraph to promptly notify the outpatient treatment psychiatrist or his or her designee of any knowledge or suspicion, arising during the period of involuntary outpatient treatment, that the involuntary outpatient is not in compliance with the treatment ordered by the court; and
• (v) provide that if at any time during the period of involuntary outpatient treatment the outpatient treatment psychiatrist determines that the involuntary outpatient has failed or has refused to comply with the treatment ordered by the court and that the involuntary outpatient may require immediate observation, care and treatment in a hospital pursuant to section 9.39 or 9.40 of this article, the outpatient treatment psychiatrist may petition the court for an immediate ex parte order directing peace officers, police officers, members of the sheriff’s department, an approved mobile crisis outreach team as defined in section 9.58 of this article, or an ambulance service as defined by subdivision two of section three thousand one of the public health law to take the involutary outpatient into custody and transport him or her to a hospital or comprehensive psychiatric emergency program for immediate observation, care and treatment pursuant to section 9.39 or section 9.40 of this article; and
• (vi) provide that if at any time during the period of involuntary outpatient treatment the outpatient treatment psychiatrist determines that the involuntary outpatient has failed or has refused to take such medication as he or she may be required to take pursuant to the order and that further delay in administering medication would not be in the best interests of the involuntary outpatient, the outpatient treatment psychiatrist may petition the court for an immediate ex parte order authorizing the forcible medication of the involuntary outpatient in a manner consistent with subdivision (l) of this section, and, where appropriate, directing peace officers, police officers, or members of the sheriff’s department to assist an approved mobile crisis outreach team as defined in section 9.58 of this article in gaining access to the involuntary outpatient.

(h) Addition and withdrawal of caregivers. (1) Not later than the ninth day following the date of the involuntary outpatient treatment order, the court shall order all identified providers of services that were not so ordered in the involuntary outpatient treatment order to promptly notify the outpatient treatment psychiatrist or his or her designee of any knowledge or suspicion, arising during the period of involuntary outpatient treatment, that the involuntary outpatient is not in compliance with the treatment ordered by the court.

(2) If at any time during the period of the order the outpatient treatment psychiatrist intends to withdraw from such designation, he or she shall notify the court in writing not later than the thirtieth day prior to such withdrawal. In so notifying the court, the outpatient treatment psychiatrist may designate as his or her replacement a qualified psychiatrist who agrees to such designation. If such notification does not designate a replacement, the court shall immediately order the director of community services to designate such replacement and provide the court, not later than the seventh day following the date of the order, with the name and address of such replacement. The director of community services shall not designate a privately employed psychiatrist pursuant to this paragraph unless such psychiatrist agrees to the designation. Upon receiving the name and address of the succeeding outpatient treatment psychiatrist, the court shall amend its outstanding orders to all providers of services accordingly.

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(3) If at any time during the period of the order a provider of services withdraws, or is withdrawn by the outpatient treatment psychiatrist, from the treatment of the involuntary outpatient, the outpatient treatment psychiatrist shall notify the court in writing of such withdrawal. In so notifying the court, the outpatient treatment psychiatrist may provide the name and address of a provider of services that has agreed to replace the withdrawn provider of services. If such notification does not designate a replacement, the court shall immediately order the director of community services to provide or arrange for the replacement of the withdrawn provider of services and provide the court, not later than the seventh day following the date of the order, with the name and address of the succeeding provider of services. Upon receiving the name and address of the succeeding provider of services, the court shall vacate its previous order with respect to the withdrawn provider of services and order the succeeding provider of services to promptly notify the outpatient treatment psychiatrist or his or her designee of any knowledge or suspicion, arising during the period of involuntary outpatient treatment, that the involuntary outpatient is not in compliance with the treatment ordered by the court.

(i) Petitions for additional periods of treatment. Prior to the expiration of an order of involuntary outpatient treatment, the person who petitioned for such order, or, if such person is unwilling or unavailable, any person authorized to file a petition under paragraph one of subdivision (c) of this section, may petition the court to order continued involuntary outpatient treatment for a period not to exceed twelve months. The procedures for obtaining any order pursuant to this subdivision shall be in accordance with the provisions of the foregoing subdivisions of this section; provided, however, that if the involuntary outpatient informs the court by affirmation or affidavit that he or she agrees to the continuation of involuntary outpatient treatment, the court may continue the order without a hearing.

(j) Petition for an order to stay, vacate or modify. (1) In addition to any other right or remedy available by law with respect to an order for involuntary outpatient treatment, an involuntary outpatient may petition the court, on notice to the outpatient treatment psychiatrist and the person who petitioned for the involuntary outpatient treatment order, to stay, vacate or modify the order.

(2) The outpatient treatment psychiatrist shall petition the court for approval before instituting a proposed material change in the involuntary outpatient treatment plan. Nonmaterial changes may be instituted by such psychiatrist without court approval. For the purposes of this paragraph, a material change shall mean an addition or deletion of a category of services from the order of the court.

(k) Review. Review of an order issued pursuant to this section shall be had in like manner as specified in section 9.35 of this article.

(l) Forcible medication. Medication administered under court order pursuant to subparagraph (vi) of paragraph two of subdivision (g) of this section shall be administered in a manner and place that, in the best judgment of the physician administering such medication and consistent with the standards of the medical community in which he or she practices, is clinically appropriate, safe, and consistent with the dignity and privacy of the involuntary outpatient.

(m) Effect of determination that a person is in need of involuntary outpatient treatment. The determination by a court that a patient is in need of involuntary outpatient treatment under this section shall not be construed as or deemed to be a determination that such patient is impaired, incompetent or incapacitated pursuant to article seventyseven, seventyeight or eightyone of this chapter as appropriate.

(n) Immunity. A qualified psychiatrist designated as an outpatient treatment psychiatrist pursuant to subparagraph (ii) of paragraph two of subdivision (g) of this section, and a provider of services placed under court order pursuant to subparagraph (iv) of paragraph two of subdivision (g) of this section or paragraph one or three of subdivision (h) of this section, shall have immunity from any civil liability that might otherwise result by reason of the duties and powers imposed by this section, provided such psychiatrist or provider of services was acting in the discharge of his or her duties and within the scope of his or her employment, and that such liability did not result from the willful act or gross negligence of such psychiatrist or provider of services.

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(o) False petition. A person who files a petition pursuant to this section that he or she knows to contain a false statement or false information shall be guilty of a class A misdemeanor.

(p) Exception. Nothing in this section shall be construed to affect the ability of the director of a hospital to receive, admit, or retain patients who otherwise meet the provisions of this article regarding receipt, retention or admission.

(q) Educational materials. The department shall, in consultation with the office of court administration, prepare educational and training materials on the use of this section, which shall be made available to local government units as defined in article forty-one of this chapter, providers of services, judges, court personnel, law enforcement officials and the general public.

(r) Annual reports. Each county shall report annually to the department the number of persons in the prior calendar year subject to involuntary outpatient treatment within such county, the number of ex parte petitions filed in the prior calendar year pursuant to subparagraph (v) and (vi) of paragraph two of subdivision (g) of this section within such county, the number of providers of services providing involuntary outpatient treatment within such county, and the categories of services provided to involuntary outpatients within such county. On or before July 1 of each year, the department shall submit a report to the state commission on quality of care for the disabled and the chairpersons of the senate and assembly committees on mental hygiene concerning the operation of this section,. Such report shall include, but need not be limited to, the data reported by each county pursuant to this subdivision, and any recommendations to improve the functionality of this section.

(s) Regulations. In order to implement the provisions of this section, the department may adopt appropriate rules and regulations.

§ 15. Section 364i of the social services law [Eff. July 31, 1999], as amended by chapter 97 of the laws of 1997, is amended to read as follows:

§ 364i. Medical assistance presumptive eligibility program

1. An individual, upon application for medical assistance, shall be presumed eligible for such assistance to the extent provided for in this section for a period of sixty days from the date of transfer from a general hospital, as defined in section twentyeight hundred one of the public health law to a certified home health agency or long term home health care program, as defined in section thirtysix hundred two of the public health law, or for a period of one hunded eighty days from the date of discharge from a hospital, as defined in section 1.03 of the mental hygiene law, if the local department of social services determines that the applicant meets each of the following criteria: (a) the applicant is receiving acute care in such hospital; (b) a physician certifies that such applicant no longer requires acute hospital care, but still requires medical care which can be provided by a certified home health agency or a long term home health care program; or, if discharged from a hospital as defined in section 1.03 of the mental hygiene law, requires medication and other eligible outpatient services to treat mental illness; (c) the applicant or his representative states that the applicant does not have insurance coverage for the required medical care and that such care cannot be afforded; (d) it reasonably appears that the applicant is otherwise eligible to receive medical assistance; (e) it reasonably appears that the amount expended by the state and the local social services district for medical assistance in a certified home health agency or long term home health care program, or for medication or other eligible outpatient services to treat an applicant’s mental illness if discharged from a hospital as defined in section 1.03 of the mental hygiene law, during the period of presumed eligibility, would be less than the amount the state and the local social services district would expend for continued acute hospital care for such person; and (f) such other determinative criteria as the commissioner shall provide by rule or regulation. If a person has been determined to be presumptively eligible for medical assistance, pursuant to this subdivision, and is subsequently determined to be ineligible for such assistance, the commissioner, on behalf of the state and the local social services district shall have the authority to recoup from the individual the sums expended for such assistance during the period of presumed eligibility.

2. Payment for up to sixty days of care for services provided under the medical assistance program shall be made for an applicant presumed eligible for medical assistance pursuant to subdivision one of this section provided, however, that such payment shall not exceed sixtyfive percent of the rate payable under this title for services provided by a certified home health agency or a long term home health care program. Notwithstanding any other provision of law, no federal financial participation shall be claimed for services provided to a person while presumed eligible for medical assistance under this program until such person has been determined to be eligible for medical assistance by the local social services district. During the period of presumed medical assistance eligibility, payment for services provided persons presumed eligible under this program shall be made from state funds. Upon the final determination of eligibility by the local social services district, payment shall be made for the balance of the cost of such care and services provided to such applicant for such period of eligibility and a retroactive adjustment shall be made by the department to appropriately reflect federal financial participation and the local share of costs for the services provided during the period of presumptive eligibility. Such federal and local financial participation shall be the same as that which would have occurred if a final determination of eligibility for medical assistance had been made prior to the provision of the services provided during the period of presumptive eligibility. In instances where an individual who is presumed eligible for medical assistance is subsequently determined to be ineligible, the cost for services provided to such individual shall be reimbursed in accordance with the provisions of section three hundred sixtyeighta of this article. Provided, however, if upon audit the department determines that there are subsequent determinations of ineligibility for medical assistance in at least fifteen percent of the cases in which presumptive eligibility has been granted in a local social services district, payments for services provided to all persons presumed eligible and subsequently determined ineligible for medical assistance shall be divided equally by the state and the district.

3. Payment for up to one hundred eighty days of care for services provided under the medical assistance program shall be made for an applicant presumed eligible for medical assistance pursuant to subdivision one of this section; provided, however, that such payment shall not exceed one hundred percent of the rate payable under this title for medication and eligible outpatient services to treat a mental illness if the applicant is discharged from a hospital as defiend in section 1.03 of the mental hygiene law.

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3. 4. On or before March thirtyfirst, nineteen hundred eightynine two thousand one, the department shall submit to the governor and the legislature an initial evaluation of the impact of the medical assistance presumptive eligibility program, including recommendations regarding possible modifications and on or before March thirtyfirst, nineteen hundred ninety two thousand two, the department shall submit to the governor and legislature a second evaluation of the program, including further recommendations for future.

§ 16. Severability. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered.

§ 17. This act shall take effect one hundred eighty days after it shall have become a law.  (Posted 2/1999)

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