Assisted Outpatient Treatment

Implementation of Assisted Outpatient Treatment (Kendra's Law)-8/26/99

NAMI-NYS Leader's Update
by Glenn Liebman, Past Executive Director

Here are three possible scenarios around Kendra's Law. We have a fifteen-step process for implementation of the legislation that will, hopefully, more easily explain the legislation. As always, please feel free to call with any questions.

Scenario #1: Individual who is subject of petition attends hearing and is found to need court-ordered treatment.

A petitioner may be one of several people, including:

• a family member (parent, spouse or a sibling)
• the director of community services in the county
• the director of a hospital the treating physician (though that individual can not petition the court by him/herself)
• several other people (see earlier leaders alert below).
  

For an individual to meet the criteria for the petition, they must:

• be 18 years or older have a mental illness
• have a history of non-compliance
• have been hospitalized twice in 36 months or been in receipt of services in a correctional facility or
• had at least one act of violent behavior in a four-year period
• several other criteria as well (also reference our earlier document on the subject)
  

The petitioner then files a petition with either the county court or Supreme Court in their area. The notice of the petition must be sent out to:

• the subject of the petition
• the physician who evaluated the subject
• the director of community services
• any other individual the court determines should be advised of the date.

The court must then hold a hearing within a period of three working days. The petitioner must have a written affidavit from the treating physician stating that the subject of the petition was personally examined by the physician within ten days of submission of the hearing. This physician can not be the petitioner.

The subject of the petition shall have the right to be represented by Mental Hygiene Legal Services. If they prefer other counsel, the individual will have to pay the expense of that person. If the court rules that the individual needs court ordered treatment, the individual must also have an approved treatment plan as well. This treatment plan will be created by the physician.

The physician shall provide the opportunity for the subject of the petition to actively participate in the treatment plan. This plan includes assignment to an ACT team or case manager. The categories of services should include medication, periodic blood and urine testing, individual or group therapy, partial day programs, education and vocational training, alcohol or substance abuse counseling and supervision of living arrangements. The initial court order lasts for a period of up to six months.

If the Director of Community Services decides the individual should be under the court order for a longer time (up to an additional year), then they have to reapply to the court. To implement the treatment plan, the Director of Community Services appoints a case manager to follow up with the treatment plan of the individual.

An assisted outpatient treatment plan can be implemented by a hospital as well. Copies of a report should then go to the Director of the Assisted Outpatient Treatment in each region who, in most cases, will likely be the Director of Community Services or hospital director. The Program Coordinator, appointed by the Office of Mental Health, is to receive the information within three days. If the Program Coordinator has not received a response that fulfills the treatment plan, then the coordinator can commence corrective activities.

Scenario #2: The subject of the petition does not attend the hearing.

All the steps are the same except:

• Court ordered treatment will transpire only if the physician who examined the individual actually testifies in court.
• If the subject of the petition does not consent to examination, but there is cause, then the court may transport the individual to a hospital for examination.
• The subject of the petition can not be held longer than twenty-four hours.

Scenario #3: The individual does not follow their court ordered treatment plan or refuses to take medication or fails blood test.

• The physician can request the Director of Community Services or designee to direct removal of a patient to the hospital.
• The Director of Community Services or a designee can direct forensics professionals (as defined in the law) to send the individual to a hospital for up to seventy-two hours. Failure to comply with this order shall not be grounds for involuntary commitment. If the Director of Community Services determines the individual should be in the hospital longer than seventy-two hours, then the individual can be in the hospital for a longer period. It is unclear how long a period that will be

Kendra's Law - Update on Assisted Outpatient Treatment Bill-8/23/99

NAMI-NYS Leader's Update
by Glenn Liebman, Past Executive Director

As you know, in the waning days of legislative session, this bill was passed in both the Senate and Assembly. The Governor is expected to sign the bill in the very near future.

We are still sorting out all the ramifications of the bill. Most of the major pieces of this legislation will begin being implemented within the next few months.

ROLE OF FAMILIES AND OTHERS WHO CAN PETITION THE COURTS

The importance of the roles of families in outpatient commitment is stressed throughout the legislation. The most important role for families in this legislation is their ability to petition for court ordered care for their loved ones. In having the ability to petition the court, the definition used for family is 'close family members.' The next section details individuals who would be eligible for outpatient treatment.

Other individuals who can petition the court are any person 18 years or older with whom the subject of the petition resides; the director of the hospital in which the individual is hospitalized; the director of any public charitable organization, agency or home providing mental health services to the subject of the petition; a qualified psychiatrist who is either supervising the treatment or treating the subject for mental illness; or the director of community services or his or her designee; and the parole or probation officer assigned to supervise the subject of the petition.

ELIGIBILITY FOR CRITERIA FOR OUTPATIENT TREATMENT
To be eligible for court ordered treatment, you have to meet the following criteria:

• 18 Years or older.
• Suffering from mental illness.
• Patient is unlikely to survey in the community without supervision, based on a clinical determination.
• The patient has a history of lack of compliance with treatment for mental illness that has: a) At least twice within the last thirty-six months been a significant factor in necessitating hospitalization,
  b) Resulted in one or more acts of serious violent behavior towards self or others or threats of, or attempts at, serious physical harm to self or others within the last 48 months.
• The patient, as a result of his/her mental illness, is unlikely to voluntarily participate in the recommended treatment plan. It is likely that the patient will benefit from assisted outpatient treatment.
• If the patient has executed a health care proxy, that any direction included in such proxy shall be taken into account by the court in determining a written treatment plan-but nothing shall preclude a person with a health care proxy from being subject to a petition.

THE PETITION PROCESS
Following are the criteria for petitioning the courts:

• Provide facts that support the petitioner's beliefs that the subject meets each of the criterion (as described in the last section).
• The petition is accompanied by either an affirmation or affidavit from a physician who shall not be the petitioner, stating that the physician has personally examined the subject no more than ten days prior to the submission of the petition; that he or she recommend assisted outpatient treatment for the subject of the petition and is willing to testify at the hearing; or they made appropriate but unsuccessful attempts to examine the subject, have reason to suspect that the subject meets the criteria for assisted treatment, and they are willing to examine the subject and testify at the hearing of the petition.

RIGHTS OF INDIVIDUALS IN THE PETITION PROCESS

• The subject of the petition has the right to be represented by mental hygiene legal services, or other counsel at the expense of the subject of the petition, at all stages of the proceeding.
• An individual making a false statement or providing false testimony in a petition or hearing is subject to criminal prosecution.
• The patient, mental hygiene legal services, or any individual acting on the patient's behalf, may apply to stay, vacate or modify the order. Appeals may be filed in accordance with Section 9.35 of this article.
• The subject of the petition shall be afforded an opportunity to present evidence, to call witnesses on behalf of the subject, and to cross-examine adverse witnesses.

COURT SYSTEM USED FOR PETITIONING

A petition for an order authorizing assisted outpatient treatment may be filed in the supreme or county court in which the subject of the petition is present or reasonably believed to be present.

HEARING CRITERIA

• Upon receipt by the court of the petition, the court shall fix a date for the hearing at a time no later than three days from the date that the petition is received by the court (excluding weekends and holidays).
• Adjournments shall be permitted only by 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 expeditiously.
• If the subject of the petition does not appear at the hearing and appropriate attempts to elicit attendance of the subject have failed, the court may conduct the hearing in such subject's absence.
• If the subject of the petition has refused to be examined by a physician, the court may request the subject to consent to an examination by a physician appointed by the court.
• If the subject of the petition does not consent and the court finds reasonable cause to believe the allegations are true, the court may order a law enforcement official to take the subject of the petition into custody and transport him or her to a hospital for examination by a physician. Retention of the subject of the petition under order shall not exceed twenty-four hours.

ROLE OF PHYSICIAN IN COURT ORDERED TREATMENT

• The court shall not order assisted outpatient treatment unless an examining physician, who has personally examined the subject of the petition within the time period commencing ten days before the filing of the petition, testifies in person at the hearing.
• A physician shall state the facts which support the allegation that the subject meets each of the criteria for assisted outpatient treatment and the treatment is the least restrictive alternative. If the assisted outpatient treatment includes medication, the physician's testimony shall describe the classes of medications which should be authorized. T
• he physician shall describe the beneficial and detrimental physical and mental effects of such medication, and shall recommend whether such medications should be self-administered or administered by authorized personnel.
• The court shall not order assisted outpatient treatment unless an examining physician appointed by the appropriate director develops and provides to the court a proposed written treatment plan. The written treatment plan shall include case management services or assertive community treatment teams to provide care coordination.
• The court shall not order assisted outpatient treatment unless a physician testifies to explain the written proposed treatment plan.

COURT FINDINGS UPHOLDING THE PETITIONERS

• If after hearing the relevant evidence, the court finds that the subject of the petition meets criteria for assisted outpatient treatment, and there is no feasible less restrictive alternative, the court shall be authorized to order the subject to receive assisted outpatient treatment for an initial period not to exceed six months.
• The court may not order treatment that has not been recommended by the examining physician and included in the written treatment plan for assisted outpatient treatment.
• If the court finds that the subject of the petition meets criteria for outpatient assisted treatment and the court is not provided with a written treatment plan, the court shall order the director of community services to provide the court with such a plan.
• The court may order the patient to self administer psychotropic drugs or accept the administration of such drugs by authorized personnel as part of an assisted outpatient treatment program.
• If the director (not clear if this is hospital or county mental hygiene director) determines that the condition of such patient requires further outpatient treatment, the director shall apply, prior to the expiration of the period of assisted outpatient treatment ordered by the court, for a second or subsequent order authorizing continued assisted outpatient treatment for a period not to exceed one year from the date of the order.

FAILURE TO COMPLY WITH THE COURT ORDER

• In the clinical judgment of a physician, if the patient has failed or has refused to comply with the treatment ordered by the court (and in the physician's judgment, efforts were made to solicit compliance), then the patient may be directed to an appropriate hospital for an examination to determine if such person has a mental illness for which hospitalization is necessary.
• If the patient fails to take medication required by the court order or refuses a blood test, urinalysis or alcohol or drug tests that are required by the order, then the physician may consider such refusal when determining whether hospitalization is necessary.
• Upon physician's request, the county mental hygiene director may direct peace officers, police officers or sheriff's department to take custody and transport any such person to the hospital operating the assisted outpatient treatment program or to any hospital authorized by the director of community services to receive such persons.
• An individual may be retained up to seventy-two hours to permit a physician to determine whether such person has a mental illness and is in need of involuntary care and treatment in a hospital.

RESPONSIBILITY FOR MONITORING AND OVERSIGHT OF ASSISTED OUTPATIENT TREATMENT

• The Commissioner of the Office of Mental Health shall appoint program coordinators of assisted outpatient treatment who shall be responsible for oversight and monitoring of outpatient treatment programs.
• The directors of mental hygiene services in each county will work in conjunction with program coordinators to coordinate the implementation of assisted outpatient treatment programs.
• The responsibilities of the program coordinator include:
  a) assurance that each assisted outpatient receive the treatment provided in the court order,
  b) that existing services located in the assisted outpatient's community are utilized whenever practicable,
  c) that a case manager or assertive community treatment team is designated for each assisted outpatient,
  d) that a mechanism exist for case manager or ACT team to report the assisted outpatient's lack of compliance with treatment and,
  e) that outpatient services are delivered in a timely manner. If it is found that services are not being delivered in a timely manner, then the program coordinator shall require the director of the outpatient program to immediately commence corrective action.

EXPIRATION DATE OF LEGISLATION

This program is set to expire on June 30, 2005.

MEDICATIONS FOR INDIVIDUALS LEAVING JAILS, PRISONS AND COMMUNITY HOSPITALS
As a separate part of this legislation, starting on April 1, 2000, there will be grants available to local governments to pay for medications for individuals leaving jails, prisons or community hospitals who have mental illness.

Currently, many of these individuals do not get any medication until they are eligible for Medicaid which may take up to ninety days. With this new program in place, the counties can apply to the state Office of Mental Health to receive funding to pay for medications on a current/as needed basis. There is no local match that the counties have to provide. This is something that NAMI-NYS has long advocated for.

*The above articles are taken from our leaders' mailings, which are mailed out to anyone who is interested in up-to-date information on mental health issues affecting New York State. If you would like to be on our mailing list to receive all of our leaders' mailings via regular mail, please e-mail us with your name and mailing address.

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