Expand Mental Health Protections

STANDARDS FOR INVOLUNTARY MENTAL HEALTH INTERVENTIONS

Bill § 3 would revise definitions in MHY § 9.01 to:

* *clarify that a substantial risk of harm to a person may be manifested by the person's substantial inability to meet their own basic needs for food, clothing, shelter, or medical care.

* *authorize involuntary intervention in circumstances where a person with mental illness is at substantial risk of psychiatric harm.

* *Improve readability of existing language and make the defined terms consistent with their usage in MHY Article 9.

Bill § 11 would delete the definition of "likelihood to result in seri- ous harm" in MHY § 9.39, as the revised definition in § 9.01 would apply to all of MHY Article 9.

Pursuant to a new MHY § 9.04 added by bill § 4, a clinical determination of whether a person's mental illness is "likely to result in serious harm to self or others" would be required to consider all relevant information presented to the evaluating facility's staff, including credible reports of the person's recent behavior and any known informa- tion related to the person's medical and behavioral history; the person's current ability, with. available support, to adhere to outpa- tient treatment; and the expected long-term impact on the person's health or safety of actions or self-neglect caused by mental illness.

QUALIFIED CLINICAL EXAMINERS

Bill § 3 would revise MHY § 9.01 to add a definition of "qualified clin- ical examiner," which would include licensed psychologists, psychiatric nurse practitioners and clinical social workers.

The bill would amend the MHY to give qualified clinical examiners the same authority that physicians now have to:

* *examine a person and certify them for involuntary admission to a hospital. MHY § 9.27 (a) and (d), as amended by bill § 6; § 9.37, as amended by bill § 10; § 9.55, as amended by bill § 17; § 9.57, as amended by bill § 19.

* *authorize an ambulance service to transport such a person. MHY § 9.27(i), as amended by bill § 6; § 9.55, as amended by bill § 17; § 9.60(n), as amended by bill § 28.

* *examine a person brought to the hospital pursuant to the certif- ications described above and to inform the hospital director's determi- nation about involuntary admission; however, like a physician, a quali- fied clinical examiner could not do this examination under MHY § 9.27 if they were one of the professionals who had completed the earlier certif- ications. MHY § 9.27(e), as amended by bill § 6; § 9.39 as amended by bill § 11.

* *be designated by a Director of Community Services (DCS), or such director's designee, to apply to a hospital for a person's involuntary admission to a hospital. MHY § 9.37(a), as amended by bill § 10.

* *examine a person brought to a comprehensive psychiatric emergency program (CPEP) to determine whether the person may have a mental illness for which immediate observation, care and treatment in a CPEP is appro- priate; and perform the examination required to confirm the findings of another physician or qualified clinical examiner regarding the need for admission. MHY § 9.40, as amended by bill § 12.

* *support a petition for assisted outpatient treatment (AOT) brought under MHY § 9.60(e)(1) by recommending the subject for AOT, based on an examination conducted no more than 10 days before submission of the petition, or if appropriate attempts to conduct an examination have been unsuccessful, based on reason to suspect that the subject meets the criteria for AOT. MHY § 9.60(e), as amended by bill § 23.

* *Request that a DCS remove a person who has not complied with an AOT order to a hospital for an examination to determine whether hospitaliza- tion is necessary. MHY § 9.60(n), as amended by bill § 28.

* *determine that a person who is subject to conditional release from a hospital has a mental illness and may be in need of involuntary care and treatment in a hospital pursuant to MHY Article 9. MHY § 29.15(e)(1), as amended by bill § 31.

* *be designated by a DCS who is not qualified to conduct examinations under the MHY to conduct examinations on such director's behalf. MHY § 41.09(b), as amended by bill § 34.

Pursuant to amendments to MHY § 9.05 that would be made by bill § 5, qualified clinical examiners would be disqualified from acting in a case under the same circumstances as now apply to examining physicians.

Bill §§ 6 through 9 and § 11 would amend MHY §§ 9.27(a), 9.29(a), 9.31(a), 9.33(a), and 9.39(b) to change the term "medical certification" to "clinical certification," recognizing the authority of qualified clinical examiners described above.

QUALIFIED MENTAL HEALTH PROFESSIONALS Bill §§ 3 and 20 would move the definition of "qualified mental health professional" currently in MHY § 9.58 to § 9.01, and expand it to include qualified clinical examiners; registered nurses; and licensed master social workers, mental health counselors, and marriage and family therapists, when such professionals are working under the supervision of a physician or qualified clinical examiner.

Under MHY § 9.27(d), as amended by bill § 6, a physician or qualified clinical examiner evaluating a person for involuntary admission would be required, insofar as reasonable, to consult with a qualified mental health professional who has furnished prior treatment.

Under a new MHY § 9.56 that would be added by bill § 18, directors of adult care facilities would be authorized to direct the removal of a resident to a hospital or crisis stabilization center for evaluation, if such removal is requested by a physician or qualified mental health professional who serves on the staff of the facility, has completed training described in § 9.56, and finds that the resident appears to be mentally ill and is acting in a manner likely to result in serious harm to self or others.

NOTIFICATIONS AND REPORTS TO DIRECTORS OF COMMUNITY SERVICES (DCS)

Bill § 13 would amend MHY § 9.41 to clarify that when peace officers or police officers temporarily detain a person pending further examination or admission to a hospital or CPEP, they may satisfy the obligation to notify the DCS by notifying the DCS's designee.

Bill § 14 would amend MHY § 9.45 by adding domestic partners and cohabi- tants of a person's home to those who may report to the DCS or the DCS's designee that a person has a mental illness for which immediate care and treatment is appropriate and that is likely to result in serious harm to self or others, authorizing the DCS or designee to direct the person's removal to a hospital.

Bill § 15 would amend MHY § 9.46(b) to maintain the scope of mental health professionals' duty under such statute to report concerns about a patient's risk of serious harm to the DCS or the DCS's designee. Under the amendment, and consistent with current law, a report would only be required when the mental health professional determines that a person is likely to engage in conduct that would result in serious physical harm to self or others. (The amendment is necessitated by the integration of "psychiatric harm" into MHY § 9.01's definition of "likely to result in serious harm to self or others" pursuant to amendments in bill § 3. Under bill § 15, a mental health professional's perceived risk of psychiatric harm would not trigger a reporting duty under MHY § 9.46.)

RESIDENTS OF ADULT CARE FACILITIES

Bill § 18 would add a new MHY § 9.56 permitting physicians and qualified mental health professionals employed at an adult care facility to request the facility's director to direct the removal of any resident who appears to be mentally ill and is acting in a manner that is likely to result in serious harm to self or others. The bill would empower the facility's director to require peace officers or police officers to transport the resident to a hospital and require the Commissioner of the Office of Mental Health to develop standards relating to training for physicians and mental health professionals on their authority under this new section. Persons removed to a hospital pursuant to § 9.56 would maintain their status as residents of the adult care facility until admitted to the hospital, or for 24 hours following release upon a determination of a physician or qualified clinical examiner not to admit them.

ASSISTED OUTPATIENT TREATMENT (AOT)

Bill § 21 would amend MHY § 9.60(c)(4)(iii) to streamline the criteria by which a court assesses an increase in symptoms of mental illness in a person previously subject to AOT, and to remove the role of the DCS in determining whether such person is in need of an additional period of AOT.

Bill § 22 would amend MHY § 9.60(e)(1)(vi) to broaden the range of indi- viduals who may initiate a petition for AOT to include a domestic part- ner of the subject of the petition and a qualified mental health profes- sional as defined in MHY § 9.01 who is treating the subject of the petition for a mental illness.

Bill § 23 would amend MHY §§ 9.60(e)(3) and 9.60(e)(4) to permit quali- fied clinical examiners to submit affirmations or affidavits in support of petitions for AOT.

Bill § 24 would amend MHY § 9.60(h) to permit qualified clinical examin- ers to perform evaluations of individuals who are the subject of petitions for AOT.

Bill § 25 would amend MHY § 9.60(i) to empower psychiatric nurse practi- tioners to develop written treatment plans for AOT and to permit physi- cians and psychiatric nurse practitioners to testify by video in court proceedings upon consent of the subject of the petition or upon a find- ing of good cause.

Bill § 26 would amend MHY § 9.60(j)(2) to provide that a court shall order AOT for an initial period of one year, unless a shorter period is warranted by a showing of good cause or the request of the petitioner. (Current law provides for an initial AOT period "not to exceed" one year.)

Bill § 27 would make a technical amendment to MHY § 9.60(k) in accord- ance with bill § 25's grant of authority to psychiatric nurse practi- tioners to develop AOT written treatment plans.

Bill § 28 would amend MHY § 9.60(n) to include qualified clinical exam- iners in the management of patients who fail to comply with AOT.

Bill § 29 would amend MHY § 9.60(s) to streamline the process for a DCS to obtain treatment history information in furtherance of an investi- gation under MHY § 9.47 of a person's eligibility for AOT, and to require that the DCS provide or make a good faith attempt to provide the person who is the subject of such investigation with advance notice of the DCS's intent to seek such disclosure and an opportunity to challenge such disclosure in court.

Bill § 33 would add a new subdivision (f-1) to MHY § 29.15 to require providers of psychiatric inpatient services to assess all patients for AOT eligibility before discharge, and to maintain records as to the findings of each such assessment and the actions taken upon such find- ings.

COMMUNICATION AND COORDINATION AMONG PROVIDERS

Bill § 30 would add a new § 9.64 requiring the director of a hospital or CPEP to provide notice to any community mental health provider that an individual who is maintained on the provider's caseload has been admit- ted as a patient.

Bill § 32 would amend MHY § 29.15(f) to require a provider of psychiat- ric inpatient services, prior to discharging or conditionally releasing a patient, to interview a representative of a community provider of mental health services that maintains the patient on its caseload and provide such representative an opportunity to participate in the devel- opment of a written service plan for such patient. It would also amend MHY § 29.15(m) to require a provider of psychiatric inpatient services to notify any community provider of mental health services that main- tains the patient on its caseload, and any adult care facility where the patient resided at the time of admission, of the patient's discharge or conditional release.

TRAINING

Bill § 35 would require the Office of Mental Health to conduct training on the changes included in this bill and their implications for practi- tioners.

EFFECTIVE DATE Bill § 36 would provide that this act would take effect 90 days after it becomes law. It would authorize the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act to be made and completed before the act's effective date. It also provides for the amendments made by this legislation not to affect the repeal or sunset of various provisions of the MHY.

Justification

In clarifying that a substantial risk of harm to a person may be mani- fested by their substantial inability to meet their basic human needs of food, clothing, shelter or medical care, this bill effectively codifies the holding of the Appellate Division in BOGGS VS. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, 132 A.D.2d 340, 342 (1st Dep't 1987). Despite the Boggs holding that " A person may be involuntarily confined for care and treatment, where his or her mental illness manifests itself in neglect or refusal to care for themselves," New Yorkers in crisis are frequently denied hospital care by a pervasive misunderstanding that the law requires conduct that is violent, suicidal, or places the individual at imminent risk. New York is one of only three states lacking explicit statutory recognition for inability to meet basic needs as a form of danger-to-self. Additionally, this legislation aligns New York's laws with those of dozens of other states by recognizing a substantial risk of psychiatric harm-not just "physical" harm-as a basis for civil commitment. A growing body of research indicates that the longer a person remains in a state of untreated psychosis, the lower their prospects for eventual mental health recovery. By expressly authorizing involuntary care to prevent such psychiatric deterioration, this bill affirms the important princi- ple that the potential for harm to a person's brain matters just as much as the potential for harm to other parts of the body. To help ensure that psychiatric inpatients receive appropriate lengths of stay to adequately prepare them for successful return to the communi- ty, this legislation also clarifies the range of evidence that should be considered when a facility determines whether to admit or retain a person for psychiatric treatment. Too often, hospital evaluations of a person's condition are based solely on how the person presents in the moment and ignore the broader context of the person's mental health history and behavior. Mental health facilities and programs in New York face significant chal- lenges due to a limited workforce. This legislation eliminates needless limitations on professional practice by expanding the types of clini- cians who can perform evaluations for hospital admission. Physicians are not uniquely qualified to diagnose mental illness and assess likeli- hood of serious harm. This bill would allow clinicians such as psychol- ogists, psychiatric nurse practitioners, and licensed clinical social workers to perform this function, thereby allowing physicians more time to provide medical care to patients. This is consistent with the scope of evaluation authority in numerous other states. In addition, New York needs more mobile crisis outreach teams (MCOTs) who can identify individuals in the community with acute mental health needs, engage them in voluntary treatment when possible, and direct their removal to a hospital for evaluation when necessary. The challenge of meeting this demand would be greatly reduced if MCOTs could be assem- bled from a wider pool of mental health professionals than current law allows. By expanding MCOT eligibility to licensed mental health counse- lors and licensed marriage and family therapists, this legislation will expand access to this vital service. Mental health professionals working in homeless shelters and other adult-care facilities frequently encounter clients in psychiatric crises in need of transport to a hospital for evaluation. Under current law, shelter staff lack authority to direct removals, leaving them dependent upon police to exercise their own removal authority. Often, the opinion of the police officer who arrives on the scene does not align with the training-informed judgment of the shelter staff clinician who requested the assistance, leaving the shelter unable to effectuate the removal. This legislation empowers adult care facility directors to direct the transport of a resident for evaluation, upon the finding of need by a clinician on the facility's staff who has completed a certification process identical to that currently required for clinicians who serve on mobile crisis outreach teams. This legislation also addresses critical gaps in communication between inpatient and outpatient providers when vulnerable individuals enter and exit hospital care. Community providers such as Assertive Community Treatment (ACT) and Intensive Mobile Treatment (IMT) teams that serve clients with severe mental illness face an immense challenge in keeping track of their clients' whereabouts and conditions, especially for those who are homeless. It is even harder to keep track when a client experi- ences a crisis and is hospitalized. Current law imposes no duty on hospitals to inform outpatient providers when their clients are admitted or discharged, nor to involve the patient's community-based providers in discharge planning. To enhance coordination of care, this legislation requires hospitals to make reasonable efforts to identify their psychi- atric patients' community providers, inform providers of admission deci- sions and discharges, and consult providers in the development of discharge plans. The remaining provisions of this legislation seek to improve "assisted outpatient treatment" (AOT), the program established by "Kendra's Law" in 1999 to provide outpatient care under court order to patients who have historically struggled to maintain mental health treatment engage- ment. When utilized, AOT has been remarkably successful in helping vulnerable individuals remain in the community and avoid repeat hospitalization and arrest. However, there has been wide variation among New York hospitals in the frequency of AOT referrals for their psychiatric inpatients. This raises concern that a significant number of AOT-eligible patients are missing opportunities to benefit from the program upon discharge. To help Kendra's Law reach its full potential to save and transform lives, this legislation makes AOT-eligibility screening of psychiatric inpa- tients standardized discharge planning practice for hospitals. In IN RE MIGUEL M., 17 N.Y.3d 37 (2011), the New York Court of Appeals ruled that when a local AOT program investigates whether a person has the requisite history of treatment non-adherence to qualify for AOT, federal health privacy law requires the program to obtain the person's consent to access their treatment records. This means that a person who does not want to participate in AOT can simply withhold consent to release their records and halt the investigation. This defeats the legislative intent of Kendra's Law. While it is preferable and common for individuals to enter the AOT program willingly, Kendra's Law was designed as an involuntary intervention precisely because individuals who stand to benefit from it are sometimes unable to recognize their need to adhere to treatment. To restore the program's ability to reach such individuals, this legislation establishes a legal process, fully consistent with the Miguel M, decision, to allow AOT programs to obtain health records without consent for the purpose of an AOT investigation and/or development of a treatment plan.

Legislative history

A.7827: Referred to Committee on Mental Health

Fiscal implications

None.

Effective date

This act would take effect 90 days after it becomes law.