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New
York State recently enacted legislation that provides
for assisted outpatient treatment for certain people with
mental illness who, in view of their treatment history
and present circumstances, are unlikely to survive safely
in the community without supervision. This new law is
commonly referred to as "Kendra’s Law"
and is set forth in Section 9.60 of the Mental Hygiene
Law (MHL). It was named after Kendra Webdale, a young
woman who died in January, 1999 after being pushed in
front of a New York City subway train by a person who
failed to take the medication prescribed for his mental
illness.
Overview
of Assisted Outpatient Treatment
Kendra’s
Law establishes a procedure for obtaining court orders
for certain individuals with mental illness to receive
and accept outpatient treatment. The prescribed treatment
is set forth in a written treatment plan prepared by a
physician who has examined the individual. The procedure
involves a hearing in which all the evidence, including
testimony from the physician, and, if desired, from the
person alleged to need treatment, is presented to the
court. If the court determines that the individual meets
the criteria for assisted outpatient treatment ("AOT"),
an order is issued to either the director of a hospital
licensed or operated by the Office of Mental Health ("OMH"),
or to a director of community services who oversees the
mental health program of a locality (i.e., the county
or the City of New York mental health director). The court
orders will require the appropriate director to provide
or arrange for those services described in the written
treatment plan which the court finds necessary. The initial
order is effective for up to 6 months and can be extended
for successive periods of up to one year. The legislation
also establishes a procedure for admission to an inpatient
setting in cases where the patient fails to comply with
the ordered treatment and poses a risk of harm.
The
new legislation also requires the Office of Mental Health
to designate "program coordinators" who are
responsible for monitoring and overseeing AOT programs.
Hospitals licensed or operated by OMH are authorized (but
not required) to operate AOT programs; county directors
of community services are required to operate AOT programs,
either separately or jointly with other counties. The
directors of local assisted outpatient treatment programs
report to the program coordinators regarding the operation
of their AOT programs and also supply the program coordinators
with information on every assisted outpatient treatment
order. All AOT programs must be approved by the Commissioner
of Mental Health.
Petitioners
The
process for issuance of assisted outpatient treatment
orders begins with the filing of a petition in the supreme
or county court where the person alleged to be mentally
ill and in need of AOT is present (or is believed to be
present). The following may act as petitioners:
• an adult (18 years or older) roommate of the person;
• a parent, spouse, adult child or adult sibling
of the person;
• the director of a hospital where the person is
hospitalized;
• the director of a public or charitable organization,
agency or home that provides mental health services and
in whose institution the person resides;
• a qualified psychiatrist who is either treating
the person or supervising the treatment of the person
for mental illness;
• the director of community services, or social
services official of the city or county where the person
is present or is reasonably believed to be present; or
• a parole officer or probation officer assigned
to supervise the person.
The
petition must show that the subject of the petition meets
the criteria for AOT and must be supported by a sworn
statement of a physician who has examined the person within
the last ten days attesting to the need for AOT. The required
physician’s affidavit may state in the alternative
that unsuccessful attempts were made in the past ten days
to obtain the consent of the person for an examination,
and that the physician believes AOT is warranted. In the
latter case, the court may request the person to consent
to examination. If the person refuses and the court finds
reasonable cause to believe the allegations in the petition
are true, the court may order peace officers or police
officers to take the person into custody for transport
to a hospital for examination by a physician. Any such
retention shall not exceed twenty-four hours.
AOT
Eligibility
No
person may be placed under an AOT order unless the court
finds by clear and convincing evidence that the subject
of the petition meets all of the following criteria:
• is at least 18 years old; and
• is suffering from a mental illness; and
• is unlikely to survive safely in the community
without supervision, based on a clinical determination;
and
• has a history of lack of compliance with treatment
for mental illness that has: (a) at least twice within
the last 36 months been a significant factor in necessitating
hospitalization or receipt of services in a forensic or
other mental health unit in a correctional facility or
local correctional facility (not including any period
during which the person was hospitalized or incarcerated
immediately preceding the filing of the petition), or
(b) 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 48 months
(not including any period in which the person was hospitalized
or incarcerated immediately preceding the filing of the
petition); and
• is, as a result of his or her mental illness,
unlikely to voluntarily participate in the recommended
treatment pursuant to the treatment plan; and
• in view of his or her treatment history and current
behavior, the person is in need of assisted outpatient
treatment in order to prevent a relapse or deterioration
which would be likely to result in serious harm to self
or others as defined in §9.01 of the Mental Hygiene
Law; and
• it is likely that the person will benefit from
assisted outpatient treatment; and
• if the person has executed a health care proxy
as defined in Article 29-C of the Public Health Law, that
any directions included in such proxy shall be taken into
account by the court in determining the written treatment
plan.
A
court may not issue an AOT order unless it finds that
assisted outpatient treatment is the least restrictive
alternative available for the person.
Service
of the Notice and Petition
Notice
of the petition must be served on a number of people or
entities, including the person, his or her nearest relative,
the Mental Hygiene Legal Services ("MHLS"),
the AOT program coordinator appointed by OMH, any health
care agent appointed in a proxy executed by the person,
and the appropriate AOT program director.
The
Court Hearing
Upon
receipt of the petition, the court is required to set
a hearing date that is no more than 3 days later, although
adjournments can be granted for good cause. The examining
physician must testify at the hearing and must state the
facts and rationale supporting the need for AOT as well
as the conclusion that such treatment is the least restrictive
alternative. The subject of the petition has the right
to legal representation by Mental Hygiene Legal Services,
or by other counsel at the subject's expense, and at all
stages of the proceeding. The person may also testify
(but is not required to do so), and he or she may call
witnesses and examine any adverse witnesses. A proposed
written treatment plan must also be furnished to the court
before an order for AOT will be issued. If the petitioner
is a director of community services or a director of a
hospital operating an AOT program, the treatment plan
is required to be provided to the court by the date of
the hearing. If the patient has previously refused to
be examined, the court may order officers to take the
person into custody for transport to a hospital for examination.
Written
Treatment Plan
The
treatment plan submitted to the court is prepared by an
examining physician appointed by the local director of
community services (or the director of a hospital with
an approved AOT program). The examining physician must
permit the person, his or her treating physician, and,
if requested by the person, a relative, close friend or
other concerned individual to actively participate in
the development of the treatment plan. The treatment plan
must include case management or assertive community treatment
("ACT") team services to provide care coordination.
It will also set forth the other categories of services
recommended by the examining physician. If the plan includes
alcohol or substance abuse counseling, then it may include
a provision for relevant testing for alcohol or illegal
substances. Such testing may be recommended only if the
physician’s clinical basis for the recommendation
shows facts sufficient for the court to find that (1)
the person has a history of alcohol or substance abuse
that is clinically related to his or her mental illness,
and (2) the testing is necessary to prevent a relapse
or deterioration which would likely result in serious
harm to the person or others.
A
physician (not necessarily the same one who testifies
regarding the satisfaction of the AOT criteria) must also
explain the treatment plan in testimony to the court demonstrating
that the proposed treatment is the least restrictive alternative.
If the treatment plan includes a recommendation for medication,
the testimony must include the types or classes of medication
recommended, the beneficial and detrimental physical and
mental effects of the medication, and whether the medication
should be self-administered or administered by authorized
professionals.
Disposition
of the Proceeding
If
the court concludes that all the criteria for AOT are
not met, the petition must be dismissed. If, however,
the court finds by clear and convincing evidence that
the subject of the petition meets the criteria and a written
treatment plan has been filed, the court may order the
subject to receive assisted outpatient treatment. If the
treatment plan and testimony explaining it have not been
provided to the court by the time of such a finding, the
court will issue an order to the appropriate director
of community services to provide the written treatment
plan and testimony within three business days.
The
initial assisted outpatient treatment order may extend
for a period of up to six months. The order must specifically
state findings that the proposed treatment is the least
restrictive treatment that is appropriate and feasible,
and must state the categories of treatment required. No
treatment may be ordered unless it is recommended by the
examining physician and included in the written treatment
plan. The order must also require the appropriate director
(either a hospital director or the local director of community
services) to provide or arrange for the services described
in the order.
The
initial order can be extended for additional successive
periods of up to one year. The same procedure used to
commence the proceeding is used to secure an order for
extension. Appeals of AOT orders are taken in the same
manner as specified in MHL §9.35 relating to retention
orders.
Failure
to Comply with AOT Order
If
in the clinical judgment of a physician the assisted outpatient
has failed or refused to comply with the treatment ordered
by the court and may be in need of involuntary admission
to a hospital, the physician may request the director
of community services, his designee, or other physician
designated under §9.37 of the MHL to arrange for
the transport of the patient to a hospital. If requested,
peace officers, police officers or members of an approved
mobile crisis outreach team shall take the patient into
custody for transport to the hospital. An ambulance service
may also be used to transport the patient. There the patient
can be held for up to 72 hours for care, observation and
treatment and to permit a physician to determine whether
involuntary admission under the standards set forth in
Article 9 of the MHL is warranted
Other
Provisions of Kendra’s Law
A.
Grants for Medication Programs
Note:
It is important to mention that the population targeted
by this medication grant program may be quite different
from the group of individuals who potentially qualify
for assisted outpatient treatment. While there will likely
be some overlap, the eligibility requirements for individuals
under the grant program are substantially different from
the eligibility criteria for assisted outpatient treatment
under §9.60(c) of the MHL.
Kendra’s
Law also addresses the need to ensure that people with
mental illness who are transitioning from hospitals or
correctional facilities to the community receive necessary
psychiatric medications without interruption. To this
end, the legislation establishes a grant program administered
by OMH (effective April 1, 2000) that will provide funding
to localities for medications to treat mental illness,
and the services necessary to prescribe and administer
such medications, during the period that an individual’s
eligibility for medical assistance is being determined.
Grants may be used to provide medications and such related
services to individuals for whom the process of applying
for medical assistance has commenced within one week after
discharge or release, and who have either:
- been
discharged from a hospital as defined in §1.03
of the MHL; or
- been
released from a correctional facility or local correctional
facility and have received services from or in a forensic
or similar mental health unit of such a facility.
The grants available under the legislation are subject
to the approval of the State Commissioner of Mental
Health based on a plan by the locality explaining:
- the
process for improving the timeliness of filing medical
assistance applications for the individuals who will
receive such medications;
- the
process by which such medications will be made available
at or near the time of release or discharge;
- the
process by which these individuals will be referred
to a city or county provider of medications or to a
provider under contract with a locality to supply such
medications; and
- the
process by which the Office of Mental Health will be
provided information necessary to file medical assistance
claims.
The
program will also provide grants to assist localities
in the development of the plans required to be furnished
to the Commissioner of Mental Health. The grants may also
assist in the preparation of plans to be used at local
correctional facilities to improve coordination between
individuals for whom the medications are targeted and
providers of the medications, as well as to help such
individuals in applying for medical assistance and other
public benefits.
B.
Termination of Conditional Release
The
legislation also amends §29.15 of the Mental Hygiene
Law regarding the termination of conditional release for
involuntary patients who leave State operated psychiatric
centers. Conditional release may be used for these patients
as a means of ending the inpatient period of service to
them without ending the State facility’s ties to
the person under the MHL. The "conditions" usually
involve the facility providing or arranging for services
on an outpatient basis and the person agreeing to accept
such services.
If
a director of an OMH inpatient facility determines that
conditional release is no longer appropriate, and a physician
on the staff of the hospital determines that the conditionally
released individual may have a mental illness and may
be in need of involuntary hospitalization, the director
may require the person to be retained for observation,
care and treatment at a hospital for up to 72 hours. Any
continued retention beyond this initial period will be
in accordance with the provisions of the Mental Hygiene
Law relating to involuntary admissions.
C.
Information Sharing
The
new legislation also provides that clinical information
on patients shall be available to mental health facilities
throughout the State. Kendra’s Law amends §33.13
of the Mental Hygiene Law, the confidentiality provision,
to clarify that OMH licensed or operated facilities may
share confidential patient information (but only information
that is necessary in light of the reason for disclosure).
Furthermore, upon prior approval of the Commissioner of
OMH, general hospital emergency room services are permitted
to share patient information with other hospital emergency
room services, as well as with hospitals licensed or operated
by OMH.
D.
Planning for AOT Programs and High-Need Patients
Kendra’s
Law also requires each local governmental unit, as part
of its local or unified services plan, to plan for the
provision of services to individuals who may be included
in an AOT program administered, supervised or operated
by the locality. Furthermore, each local governmental
unit is required under the legislation to plan for the
provision of mental health services to "high-need
patients" as that term is defined by the Commissioner
of Mental Health.
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