ATTORNEY GENERAL’S LEGISLATIVE PROGRAM BILL #99-1.  MEMORANDUM IN SUPPORT OF THE “ASSISTED OUTPATIENT TREATMENT ACT”

TITLE:

AN ACT to amend the mental hygiene law, in relation to authorizing court orders to require mentally ill outpatients to comply with prescribed treatment, and expanding medical assistance presumptive eligibility.  (Short title: Assisted Outpatient Treatment Act.) 

PURPOSE:

This bill will:

• (1) encourage previously non-compliant mentally ill outpatients to adhere to treatment and maintain their mental health;
• (2) provide a legal mechanism for caregivers and family members of the mentally ill to ensure appropriate treatment monitoring of their patients and loved ones; and
• (3) prevent the tragic consequences that often result when untreated mentally ill persons deteriorate to the point of dangerousness. 

JUSTIFICATION:

On the evening of January 3, 1999, Kendra Webdale was pushed to her death in front of an oncoming train in a Manhattan subway station.  Her killer was a total stranger: Andrew Goldstein, a paranoid schizophrenic who had ceased taking his prescribed medication.

Long before this senseless killing, Andrew Goldstein was a tragedy waiting to happen.  He had spent years in and out of several institutions, and had a documented history of going off medication.  In August of 1998, Hillside Hospital in Queens gave Goldstein a prescription for anti-psychotic medicine.  When hospital staff attempted to make sure Goldstein was taking the medicine, they found he had given them the wrong phone number.  But the hospital had no authority to take further action, and did not pursue the case.  Goldstein’s roommates report that he spent the days before the killing lying on his bed and staring at the walls for hours on end, a clear sign that he wasn’t taking his medicine.

To be sure, the great majority of mentally ill outpatients understand that to stay well, they must comply with treatment.  But there are also many Andrew Goldsteins: outpatients who have great difficulty taking responsibility for their own care.  Often, families and caregivers must stand by helplessly and watch their non-compliant patients and loved ones fall apart.  Current law offers no recourse until the person demonstrates that he is dangerous to himself or others -- hopefully, not by hurting anyone.

This bill will help to address this problem through the establishment of “involuntary outpatient treatment” in New York State.  Thirty-seven states already have such laws, and numerous studies have shown that they work.  For example, a 1998 Duke University study of involuntary outpatient treatment in North Carolina found that outpatients subject to court orders had fewer psychiatric admissions, spent fewer days in the hospital and had fewer incidents of violence than outpatients without court orders.  Clearly, mandated treatment has proven to be infinitely more compassionate than allowing outpatients the “freedom” to destroy themselves.

While the current pilot project at Bellevue Hospital is a step in the right direction, a statewide expansion of the Bellevue model would not adequately address New York’s need for involuntary outpatient treatment.  This bill’s most significant improvements over the Bellevue model are:

• Under the Bellevue model, only a hospital may petition for involuntary outpatient treatment,  and the subject of the petition must currently be a patient at the hospital.  This bill would allow petitions from family members and a range of caregivers, and does not require the subject of the petition to be currently hospitalized.
• The Bellevue model does not include the monitoring provisions described above, i.e., the designation of an “outpatient treatment psychiatrist” to oversee care, or court orders directing providers of services to report any knowledge or suspicion of non-compliance.
• At Bellevue, a court order is only renewable while the outpatient is within eighteen months of his last two hospitalizations that resulted from going off treatment.  Under this bill, a court order would be indefinitely renewable. 

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill states the short title.

Section 2 of the bill states legislative findings.

Sections 3 through 13 of the bill amend §§ 9.01, 9.05, 9.13, 9.15, 9.21, 9.27, 9.31, 9.37, 9.39, 9.40 and 9.47 of the Mental Hygiene Law by changing the phrases “in need of care and treatment” and “in need of involuntary care and treatment” to “in need of inpatient care and treatment” and “in need of involuntary inpatient care and treatment,” respectively (emphasis added).  These amendments make clear that existing sections of article nine of the mental hygiene law do not apply to persons in need of voluntary or involuntary outpatient care and treatment.

Section 14 of the bill creates a new § 9.60 of the Mental Hygiene Law to establish a procedure for “involuntary outpatient treatment,” under which a court may order an eligible mentally ill outpatient to comply with prescribed treatment:

A petition to commit a person under new § 9.60 may be filed by a close family member or housemate of the mentally ill person, a director of a charity or public agency providing shelter to the person, a director of a mental hospital preparing to release the person, a psychiatrist, or a local mental health official.  The petition must be accompanied by the affidavit of a psychiatrist who has examined or attempted to examine the person and is willing to submit a proposed treatment plan to the court.

A hearing shall be held within five working days of the filing of the petition.  At the hearing, the court shall solicit testimony from the examining psychiatrist (if necessary, the person may be retained for such exam).  The criteria for an order are: that the person is mentally ill, is unlikely to survive safely without supervision, has been hospitalized for treatment of mental illness within the last 36 months, has a history of treatment non-compliance, needs involuntary outpatient treatment to avoid the likelihood of serious harm to himself or others, and is likely to benefit from involuntary outpatient treatment.  The examining psychiatrist must substantiate that the person meets all the criteria, substantiate that such treatment is the least restrictive alternative, and recommend and explain a treatment plan.  The subject of the petition is entitled to counsel, and to rebut the allegations that involuntary outpatient treatment is warranted.  The court is encouraged to solicit testimony from the subject of the petition, but if such person does not appear at the hearing, the court may conduct the proceeding in his or her absence. 

No later than the hearing date, the examining physician shall present his or her recommended treatment plan to the court in writing.  If providers of services have already been secured to provide the recommended outpatient services, such providers shall be identified in the proposed plan.

If the court finds that involuntary outpatient treatment is warranted, it shall order the person to adhere to the treatment plan recommended by the examining psychiatrist, or any part thereof, for a period not to exceed one year.

The court order shall also:

• designate a willing psychiatrist as the “outpatient treatment psychiatrist,” or direct the  director of community services to designate a psychiatrist for such role.
• direct the director of community services to provide or arrange for the involuntary outpatient to receive all ordered services for which no provider has already been secured, and identify all service providers to the court within seven working days.
• direct all currently identified service providers to report any knowledge or suspicion of the involuntary outpatient’s non-compliance to the outpatient treatment psychiatrist. (Service providers not yet known will be placed under the same order when identified to the court.)
• provide that in the event of non-compliance, the outpatient treatment psychiatrist may, after determining that the involuntary outpatient may be in immediate need of treatment, petition for an ex-parte court order to forcibly medicate the involuntary outpatient and/or have the involuntary outpatient retained in a mental hospital for a 72-hour emergency evaluation.

The involuntary outpatient has the right to a rehearing and appeal, and retains during the period of  involuntary treatment the right to petition to stay, modify or vacate the order.

During the period of the order, the outpatient treatment psychiatrist may make “non-material” changes in the treatment plan without court approval.  “Material changes,” defined as the addition or deletion of a category of services from the treatment plan, require the doctor to petition the court.

There is no limit to the number of times an order may be renewed.  If the involuntary outpatient communicates his assent, the court need not hold a hearing to renew the order. 

Outpatient treatment psychiatrists, and service providers under court order to report non-compliance,  shall be immune from any civil liability, other than for willful acts or gross negligence, that might otherwise arise from the duties and powers imposed by new § 9.60.

Involuntary outpatients who meet the criteria for Medicaid eligibility for hospital care shall be presumed Medicaid-eligible for treatment ordered under new § 9.60.   

Knowingly making a false statement in a petition filed under new § 9.60 shall be a class A misdemeanor.

The Department of Mental Health, in consultation with the Office of Court Administration, shall be required to prepare educational and training materials to assist caregivers, judges, court personnel, law enforcement officials and the general public in utilizing new § 9.60.  The Department is also required to report annually on operation of the law, and is authorized to promulgate any necessary regulations.

Section 15 of the bill amends § 364-i of the Social Services Law to provide 180 days of presumptive Medicaid eligibility to mentally ill persons moving from inpatient to outpatient status.

Section 16 of the bill is a severability provision.

Section 17 of the bill states the effective date. 

EXISTING LAW:

Under current New York law, involuntary treatment of the mentally ill almost always involves hospitalization.  Indeed, the phrase “in need of involuntary care and treatment” is defined under the current mental hygiene law to mean “that a person has a mental illness for which care and treatment as a patient in a hospital is essential to such person’s welfare[.]” (Men Hyg § 9.01-- emphasis added.)

There are, however, two sections of the Mental Hygiene Law that authorize involuntary treatment of outpatients under limited circumstances:

Men Hyg § 29.15 is New York’s “conditional release” law.  This section authorizes the Office of Mental Health (OMH) to release an involuntary patient from a state facility prior to the expiration of such patient’s order of commitment, on the condition that such patient adhere to an outpatient treatment plan for the duration of the commitment period.  If, after releasing such patient, OMH determines that the patient has failed to comply with his or her prescribed treatment, OMH may return the patient to a state facility for whatever period remains on the commitment order.  The limitations of the conditional release law are that it can only be used with patients currently under in-patient commitment orders, and only authorizes OMH to require outpatient treatment for whatever period remains on the patient’s commitment order.

In 1994, New York enacted Men Hyg § 9.61, authorizing the creation of an involuntary outpatient treatment pilot program.  This program has been established at Bellevue Hospital, and will “sunset”  on June 30, 1999.  Under the terms of § 9.61, the Bellevue program is similar to conditional release in that it can only be used upon discharge of a currently hospitalized patient.  But unlike conditional release, the Bellevue program does not limit the period of mandated outpatient treatment to the time remaining on the patient’s commitment order.  Patients who have completed their commitment term are eligible.  The program also differs from conditional release in that it requires the hospital to obtain a court order directing the patient to comply with treatment.  The maximum term of an order is 180 days, with a limited renewal provision.  If a patient violates the court order and it is determined that efforts were made to solicit compliance and that the patient may be dangerous to himself or others, the patient may be retained for emergency evaluation and/or forcible medication.  If, upon emergency evaluation, the patient is found to be in need of in-patient care, the hospital may petition for involuntary inpatient commitment as it would in any other situation where a patient is  dangerous to himself or others. 

FISCAL IMPLICATIONS:

It is anticipated that the costs of monitoring outpatients and providing services under this bill would be offset by savings to OMH and counties that would accrue as a result of decreases in the frequency and length of hospitalizations, and a lessened need for “emergency interventions” currently attributable to a lack of outpatient monitoring. 

LEGISLATIVE HISTORY:

This is a new bill. 

EFFECTIVE DATE:

One hundred eighty days after it shall have become a law.  (Posted 2/1999)

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