Court-Ordered Outpatient Addiction Treatment

Section 1. The mental hygiene law is amended by adding a new article 23 to read as follows:

ARTICLE 23

ASSISTED OUTPATIENT TREATMENT FOR SUBSTANCE ABUSE Section 23.01 Assisted outpatient treatment for substance abuse.

23.03 Definitions.

23.05 Criteria for assisted outpatient treatment for substance

abuse.

23.07 Petition to the court.

23.09 Service.

23.11 Right to counsel.

23.13 Hearing.

23.15 Written treatment plan.

23.17 Disposition.

23.19 Petitions for additional periods of treatment; petitions

for an order to stay, vacate or modify; and appeals.

23.21 Failure to comply with assisted outpatient treatment.

23.23 Effect of determination that a person is in need of

assisted outpatient treatment.

23.25 False petition.

23.27 Education and training.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD01812-01-7

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23.29 The assisted outpatient treatment for substance abuse

advisory council. § 23.01 Assisted outpatient treatment for substance abuse.

There is hereby established the assisted outpatient treatment for substance abuse program. This program shall serve individuals with substance use disorders who, due to opioid abuse, require services to prevent them from causing harm to themselves and others. The commissioner, in consultation with the commissioner of the department of health and the commissioner of the office of mental health, and in conjunction with the assisted outpatient treatment for substance abuse advisory council, shall promulgate all rules and regulations necessary to implement the provisions of this article. § 23.03 Definitions.

For the purposes of this article, the following definitions shall apply:

(a) "Assisted outpatient treatment for substance abuse" shall mean categories of services that have been ordered by the court pursuant to this article. Such treatment shall include case management services to provide care coordination, and may also include any of the following categories of services: substance use disorder services, detoxification as deemed appropriate pursuant to a written treatment plan; medication supported recovery; individual or group therapy; day or partial day programming activities; tests for the presence of alcohol or illegal drugs; supervision of living arrangements; treatment for co-occurring disorders; and any other services prescribed to treat the person's substance use disorder and to assist the person 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 or serious harm to the person or others.

(b) "Assisted outpatient treatment for substance abuse program" shall mean a system to arrange for, and coordinate the provision of, assisted outpatient treatment for substance abuse; to monitor treatment compliance by assisted outpatients; to take appropriate steps to address the needs of such individuals; and to ensure compliance with court orders.

(c) "Assisted outpatient" shall mean the person under a court order to receive assisted outpatient treatment for substance abuse due to a substance use disorder.

(d) "Opioid" shall mean an opiate, opium, opium poppy or poppy straw; and any salt, compound, derivative, or preparation of thereof that is chemically equivalent or identical to such substances.

(e) "Subject of the petition" or "subject" shall mean the person who is alleged in a petition, filed pursuant to the provisions of this article, to meet the criteria for assisted outpatient treatment for substance abuse.

(f) "Substance use disorder" shall mean the misuse of, dependence on, or addiction to a legal or illegal opioid leading to effects that are detrimental to the individual's physical and mental health, or the welfare of others. § 23.05 Criteria for assisted outpatient treatment for substance abuse.

(a) A person may be ordered to receive assisted outpatient treatment for substance abuse if the court finds that such person:

(1) is eighteen years of age or older; and

(2) is suffering from a substance use disorder; and

(3) is unlikely to survive safely in the community without supervision, based on a clinical determination; and

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(4) has a history of lack of compliance with treatment for a substance use disorder, as evidenced by:

(i) prior to the filing of the petition, at least twice within the last thirty-six months, his or her substance use disorder has been a significant factor in necessitating hospitalization in a hospital, as defined in article twenty-eight of the public health law, or receipt of substance abuse treatment services in a correctional facility or a local correctional facility, not including any current period, or period ending within the last six months, during which the person was or is hospitalized or incarcerated; or

(ii) prior to the filing of the petition, resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any current period, or period ending within the last six months, in which the person was or is hospitalized or incarcerated; provided, however, that use of an opioid alone shall not be deemed as satisfying this requirement; and

(5) is, as a result of his or her substance abuse, unlikely to voluntarily participate in substance use disorder services that would enable him or her to live safely in the community; and

(6) in view of his or her treatment history and current behavior, is in need of assisted outpatient treatment for substance abuse in order to prevent a relapse or deterioration that would be likely to result in serious harm to the person or others; and

(7) is likely to benefit from assisted outpatient treatment for substance abuse. § 23.07 Petition to the court.

(a) A petition for an order authorizing assisted outpatient treatment for substance abuse may be filed in the supreme or county court in the county in which the subject of the petition is present or reasonably believed to be present. A petition to obtain an order authorizing assisted outpatient treatment for substance abuse may be initiated only by the following persons:

(1) any person eighteen years of age or older with whom the subject of the petition resides; or

(2) the parent, spouse, sibling, or child of the subject of the petition who is eighteen years of age or older; or

(3) any other person deemed appropriate by the commissioner in regulation.

(b) The petition shall state:

(1) each of the criteria for assisted outpatient treatment for substance abuse as set forth in section 23.05 of this article;

(2) facts which support the petitioner's belief that the subject of the petition meets each criterion, provided that the hearing on the petition need not be limited to the stated facts; and

(3) that the subject of the petition is present, or is reasonably believed to be present, within the county where such petition is filed.

(c) The petition shall be accompanied by an affirmation or affidavit of a physician, who shall not be the petitioner, stating either that:

(1) such physician has personally examined the subject of the petition no more than ten days prior to the submission of the petition, recommends assisted outpatient treatment for substance abuse for the subject of the petition, and is willing and able to testify at the hearing on the petition; or

(2) no more than ten days prior to the filing of the petition, such physician or his or her designee has made appropriate attempts, but has

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not been successful in eliciting the cooperation of the subject of the petition to submit to an examination; such physician has reason to suspect that the subject of the petition meets the criteria for assisted outpatient treatment for substance abuse; and such physician is willing and able to examine the subject of the petition and testify at the hearing on the petition.

(d) In counties with a population of less than seventy-five thousand, the affirmation or affidavit required by subdivision (c) of this section may be made by a physician who is an employee of the office. The office is authorized to make available, at no cost to the county, a qualified physician for the purpose of making such affirmation or affidavit consistent with the provisions of such subdivision. § 23.09 Service.

The petitioner shall cause written notice of the petition to be given to the subject of the petition, and a copy thereof to be given personally or by mail to such other persons as the commissioner deems appropriate in regulation. § 23.11 Right to counsel.

The subject of the petition shall have the right to be represented by counsel at all stages of a proceeding commenced under this section. § 23.13 Hearing.

(a) Upon receipt of the petition, the court shall fix the date for a hearing. Such date shall be no later than three 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 for further examination by a physician or the potential need to provide assisted outpatient treatment for substance abuse expeditiously. The court shall cause the subject of the petition, any other person receiving notice pursuant to section 23.09 of this article, the petitioner, the physician whose affirmation or affidavit accompanied the petition, 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, and appropriate attempts to elicit the attendance of the subject have failed, the court may conduct the hearing in the subject's absence. In such case, the court shall set forth the factual basis for conducting the hearing without the presence of the subject of the petition.

(b) The court shall not order assisted outpatient treatment for substance abuse unless an examining physician, who recommends assisted outpatient treatment for substance abuse and has personally examined the subject of the petition no more than six months before the filing of the petition, testifies in person at the hearing. Such physician shall state the facts and clinical determinations that support the allegation that the subject of the petition meets each of the criteria for assisted outpatient treatment for substance abuse. The commissioner shall in regulation address instances in which the subject of the petition refuses examination by a physician.

(c) A physician who testifies pursuant to subdivision (b) of this section shall state: (i) the facts that support the allegation that the subject meets each of the criteria for assisted outpatient treatment for substance abuse, (ii) that the treatment is the least restrictive alternative, (iii) the recommended assisted outpatient treatment for

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substance abuse, and (iv) the rationale for the recommended assisted outpatient treatment for substance abuse. If the recommended assisted outpatient treatment for substance abuse includes medication supported recovery, such physician's testimony shall provide such details as the commissioner shall require in regulation.

(d) The subject of the petition shall be afforded an opportunity to present evidence, to call witnesses on his or her behalf, and to crossexamine adverse witnesses. § 23.15 Written treatment plan.

(a) The court shall not order assisted outpatient treatment for substance abuse unless a physician develops and provides to the court a proposed written treatment plan, in accordance with regulations promulgated by the commissioner. The written treatment plan shall include case management services to provide care coordination. The written treatment plan also shall include all categories of services that such physician recommends that the subject of the petition receive. All substance abuse programs shall be notified regarding their inclusion in the written treatment plan.

(b) The physician appointed to develop the written treatment plan shall provide the following persons with an opportunity to actively participate in the development of such plan: the subject of the petition; the treating physician, if any; and upon the request of the subject of the petition, an individual significant to the subject including any relative, close friend or individual otherwise concerned with the welfare of the subject. If the subject of the petition has executed a health care proxy, the appointed physician shall consider any directions included in such proxy in developing the written treatment plan.